731 F.3d 281 (3rd Cir. 2013), 12-2775, Taveras v. Attorney General of United States

Docket Nº:12-2775.
Citation:731 F.3d 281
Opinion Judge:RENDELL, Circuit Judge:
Party Name:Orlando Fernandez TAVERAS, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES of America, Respondent.
Attorney:Sandra L. Greene, (argued), GreeneFitzgerald Advocates and Consultants, York, PA, for Petitioner. Eric Holder, Jr., United States Attorney General, Stuart F. Delery, Acting Assistant Attorney General, Civil Division, Cindy S. Ferrier, Assistant Director, Office of Immigration Litigation, Thomas W...
Judge Panel:BEFORE: RENDELL and GREENAWAY, JR., Circuit Judges, ROSENTHAL, District Judge.[*]
Case Date:October 01, 2013
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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731 F.3d 281 (3rd Cir. 2013)

Orlando Fernandez TAVERAS, Petitioner

v.

ATTORNEY GENERAL OF the UNITED STATES of America, Respondent.

No. 12-2775.

United States Court of Appeals, Third Circuit.

October 1, 2013

Argued May 22, 2013.

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Sandra L. Greene, (argued), GreeneFitzgerald Advocates and Consultants, York, PA, for Petitioner.

Eric Holder, Jr., United States Attorney General, Stuart F. Delery, Acting Assistant Attorney General, Civil Division, Cindy S. Ferrier, Assistant Director, Office of Immigration Litigation, Thomas W. Hussey, Sunah Lee, (argued), Brooke M. Maurer, United States Department of Justice, Office of Immigration Litigation, Civil Division, Washington, D.C., for Respondent.

BEFORE: RENDELL and GREENAWAY, JR., Circuit Judges, ROSENTHAL, District Judge.[*]

OPINION

RENDELL, Circuit Judge:

Orlando Fernandez Taveras petitions for review of the Board of Immigration Appeals (" BIA" ) June 2012 order of removal. The removal order was based on two convictions for petty larceny, both crimes of moral turpitude under the Immigration and Nationality Act (" INA" ). The BIA rejected Fernandez Taveras's argument

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that he was eligible for adjustment of status or waiver of inadmissibility under § 212(h) of the INA, notwithstanding a 1999 drug conviction. Fernandez Taveras urged that, because he had previously been granted a cancellation of removal under INA § 240A(a), the conviction that formed the basis of the prior removal proceedings— his 1999 drug conviction— had been " waived" and could not be relied upon in the later proceeding to render him statutorily ineligible for adjustment of status and § 212(h) waiver. The Immigration Judge agreed with Fernandez Taveras, but the BIA reversed. Fernandez Taveras's petition raises this issue, and for the reasons that follow, we will deny his petition.

I.

Fernandez Taveras, a native and citizen of the Dominican Republic, entered the United States as a lawful permanent resident in February 1978. He was one year old at the time, and has since left the country only twice— once at age five and again at age thirteen. In December 2009, he married a United States citizen. He also is a father of two children who are United States citizens: a fifteen-year-old daughter from a prior relationship, and a five-year-old daughter with his wife. Additionally, he has other family ties in the United States, including his mother, siblings, aunts, and cousins, who are citizens or lawful permanent residents of the United States.

The Department of Homeland Security (" DHS" ) initiated removal proceedings against Fernandez Taveras in 2003 based upon his 1999 conviction under New York state law for criminal possession of a controlled substance, specifically, crack cocaine (the " 1999 drug conviction" ). The DHS sought to remove Fernandez Taveras as an alien deportable for a controlled substance violation, other than a single offense involving possession for one's own use of 30 grams or less of marijuana, pursuant to INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i). Fernandez Taveras sought cancellation of removal under INA § 240A(a), 8 U.S.C. § 1229b(a), which provides relief from removal for certain permanent residents who can demonstrate a lengthy physical presence and substantial ties in the United States, and have not committed an aggravated felony. INA § 240A(a), 8 U.S.C. § 1229b(a).1 The Immigration Judge (" U" ) granted his application for cancellation of removal in 2004, which terminated the removal proceedings.

Over five years later, in January 2010, the DHS instituted a second removal proceeding against Fernandez Taveras. This time, the Notice to Appear charged Fernandez Taveras with removability under INA § 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii), as an alien deportable for committing two or more crimes involving moral turpitude (" CIMT" ). Specifically, Fernandez Taveras's removal proceedings arose from two convictions in 2006 and 2008 for petit larceny under New York state law.

Fernandez Taveras admitted the factual allegations in the Notice to Appear, and conceded that he was removable as charged. Fernandez Taveras then sought relief from removal by filing an application for adjustment of status under INA § 245(a), 8 U.S.C. § 1255(a), and an application for a waiver of inadmissibility under INA § 212(h), 8 U.S.C. § 1182(h).2

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The IJ issued an oral decision finding that Fernandez Taveras was removable as an alien deportable for committing two CIMT as defined in the statute. However, the IJ granted Fernandez Taveras a § 212(h) waiver and granted his application for adjustment of status. Because Fernandez Taveras's 1999 drug conviction had been the basis for the prior proceedings, which resulted in the cancellation of removal, the IJ accepted Fernandez Taveras's argument that he had essentially received a " waiver" of that conviction such that he could no longer be found inadmissible for that offense under INA § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II), or ineligible for § 212(h) waiver.3

The IJ rejected the contrary view of the Fifth Circuit Court of Appeals in De Hoyos v. Mukasey, 551 F.3d 339, 342 (5th Cir.2008), finding it distinguishable, in part, because, in the IJ's view, it did not account for the INA's statutory scheme, particularly § 101(a)(13)(C)(v), 8 U.S.C. § 1101(a)(13)(C)(v). As we discuss below, this provision governs matters concerning whether lawful permanent residents reentering the United States are " seeking admission." The IJ, however, read § 101(a)(13)(C)(v) to apply to an alien seeking adjustment of status, and to suggest " that once a waiver is granted for an offense under Section 240A(a) of the INA, that that alien will not be subsequently inadmissible for that offense." App. at 49. Accordingly, the IJ concluded, Fernandez Taveras was " statutorily eligible to apply for adjusting of status and for a waiver under Section 212(h) of the INA, notwithstanding his drug conviction, which would [otherwise] render him inadmissible under Section 212(a)(2) of the INA for a drug offense that cannot be waived under Section 212(h) of the INA." Id.

The DHS appealed the IJ's decision, and the BIA agreed with the DHS that Fernandez Taveras was ineligible to adjust his status and receive a § 212(h) waiver due to his 1999 drug conviction. The BIA concluded that the IJ had erred in his " interpretation of the law" by determining that a " grant of cancellation of removal in prior removal proceedings precluded consideration of his drug possession conviction" in connection with Fernandez Taveras's application for adjustment of status. App. at 3. This determination, the BIA concluded, was at odds with the Board's controlling precedent, particularly, Matter of Balderas, 20 I. & N. Dec. 389 (BIA 1991), which, the BIA explained, instructs " that a waiver of inadmissibility or deportability waives only the ground charged, but not the underlying basis for removability." App. at 5. Under Balderas 's rationale, Fernandez Taveras's prior drug conviction could statutorily constitute an underlying basis for inadmissibility and render him ineligible for a § 212(h) waiver. Id. 4 The BIA also rejected the notion that that the enactment of § 101(a)(13)(C) somehow affected Balderas 's " longstanding principle," instead, concluding that it applied to an entirely different procedural situation, as we discuss below. Id.

Considering Fernandez Taveras's applications for adjustment of status and

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§ 212(h) waiver in light of his 1999 drug conviction, the BIA concluded that his " drug possession conviction clearly renders him inadmissible under section 212(a)(2)(A)(i)(II) of the Act, so he is not statutorily eligible for adjustment of status" nor eligible for a Section 212(h) waiver. Id. The BIA sustained the DHS's appeal, vacated the IJ's decision, and ordered Fernandez Taveras's removal from the United States to the Dominican Republic.

Fernandez Taveras timely filed this petition for review of the BIA's order.

II.

We have general jurisdiction under 8 U.S.C. § 1252(a)(1) to review a final order of removal against an alien. Generally, we lack jurisdiction to review a final order of removal against an alien who has been convicted of certain criminal offenses. 8 U.S.C. § 1252(a)(2)(C). However, we retain jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to " review ... constitutional claims or questions of law raised upon a petition for review," and apply de novo review, subject to applicable canons of deference. Santos-Reyes v. Att'y Gen., 660 F.3d 196, 199 (3d Cir.2011).

III.

As illustrated by the divergent rulings of the IJ and BIA, whether Fernandez Taveras qualifies for relief from removal hinges on whether his 1999 drug conviction continues to constitute grounds of ineligibility for adjustment of status and § 212(h) waiver, notwithstanding the earlier grant of § 240A(a) cancellation of removal. Fernandez Taveras cannot meet the statutory requirements for adjustment of status and § 212(h) waiver if we conclude that the 1999 drug conviction was appropriately considered. The 1999 drug conviction would be a basis for Fernandez Taveras's inadmissibility under § 212(a)(2)(A)(i)(II) for having violated a law " relating to a controlled substance." 8 U.S.C. § 1182(a)(2)(A)(i)(II). Similarly, a § 212(h) waiver could not apply to " waive the application of ... subparagraph (A)(i)(II)" because the 1999 drug conviction did not " relate[ ] to a single offense of simple possession of 30 grams or less of marijuana." 8 U.S.C. § 1182(h). And, without the availability of a § 212(h) waiver, his inadmissibility would render him ineligible for adjustment of status and thus relief from removal. See 8 U.S.C. § 1255(a)(2) (mandating as a prerequisite for adjustment of status that an alien " is admissible to the United States for permanent residence" ).5

Fernandez Taveras argues that the IJ...

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