Arevalo v. U.S. Attorney Gen.

• Citation: 872 F.3d 1184
• Decision Date: 06 October 2017
• Docket Number: No. 16-11458.,16-11458.
• Parties: Jorge O. AREVALO, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

872 F.3d 1184

Jorge O. AREVALO, Petitioner,
v.
U.S. ATTORNEY GENERAL, Respondent.

No. 16-11458.

United States Court of Appeals, Eleventh Circuit.

October 6, 2017

Eli Aragorn Echols, Socheat Chea, PC, Duluth, GA, for Petitioner.

OIL, William Clark Minick, Gregory Michael Kelch, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC, Alfie Owens, DHS/ICE Office of Chief Counsel, Atlanta, GA, for Respondent.

Before JULIE CARNES and FAY, Circuit Judges, and GOLDBERG,^* Judge.

PER CURIAM:

This appeal requires the Court to determine whether to grant deference under Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc. , 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), to the Board of Immigration Appeals's ("BIA") interpretation

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of § 212(h) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(h), in the context of an application for cancellation of removal under § 240A(b)(2)(A) of the INA, 8 U.S.C. § 1229b(b)(2)(A).

Section 1182(h) is a waiver provision: Under certain defined circumstances, it permits the Attorney General to waive an immigrant's inadmissibility to the United States, including in cases where the immigrant has committed a crime of moral turpitude. See 8 U.S.C. § 1182(a)(2)(A) (establishing that an alien who has committed a crime involving moral turpitude is generally inadmissible). The statutory framework does not clarify whether the § 1182(h) waiver applies to applicants seeking relief under § 1229b(b)(2)(A), a "special rule" whereby an otherwise inadmissible immigrant who has been the victim of domestic violence may cancel his removal from the United States if he meets specified criteria (hereinafter, the "Special Rule"). One of those criteria, however, states that the immigrant must not be inadmissible as a result of his commission of a crime involving moral turpitude. 8 U.S.C. § 1229b(b)(2)(A)(iv).

Petitioner Jorge Arevalo was charged with inadmissibility and sought to cancel his removal from the country under the Special Rule. Standing in his way were two convictions for two separate crimes of moral turpitude: petty theft and child abuse. To avoid the impact of these convictions, he applied for a waiver of inadmissibility under § 1182(h). The Immigration Judge ("IJ") presiding over Arevalo's case denied his application for waiver. On appeal, the BIA confirmed that a petitioner who has committed a crime of moral turpitude and who is seeking to cancel his removal under the Special Rule is not entitled to use the § 1182(h) waiver to bring himself into compliance with the Special Rule's requirements. With the benefit of oral argument and after careful review of the statutory framework, we conclude that the BIA's interpretation is entitled to deference under Chevron and DENY Arevalo's petition for review.

BACKGROUND ¹

Jorge Arevalo is a native and citizen of Guatemala. He entered the United States without being admitted or paroled near Newberry Park, California, on or around December 1, 1986. As such, he has at all times been inadmissible under 8 U.S.C. § 1182(a)(6)(A)(i) ("An alien present in the United States without being admitted or paroled ... is inadmissible.").

Between 1989 and 1991, Arevalo was arrested and convicted of two crimes. His first conviction was for petty theft from a K–Mart in Ventura County, California. His second was for felony child abuse, also in Ventura County. He was sentenced to probation for both convictions.

In May 2006, Arevalo was reclassified as a special immigrant under Form I–360 and was provisionally permitted to remain in the United States. A year later, immigration authorities learned of his two convictions and revoked approval of his Form I–360 petition upon finding that the convictions showed that Arevalo lacked the requisite "good moral character."

In May 2009, the Department of Homeland Security ("DHS") issued a Notice to Appear, Form I–862, charging Arevalo with removability under § 1182(a)(6)(A)(i) for presence in the Unites States without having been admitted. In the ensuing proceeding, Arevalo conceded his removability

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under § 1182(a)(6)(A)(i) but asked the presiding IJ to find him eligible for cancellation of removal under the so-called "Special Rule" for cancellation of removal, 8 U.S.C. § 1229b(b)(2)(A). The DHS opposed this request, arguing that Arevalo was ineligible for Special Rule cancellation because he is inadmissible under § 1182(a)(2)(A)(i) for having committed two crimes of moral turpitude. Under § 1229b(b)(2)(A)(iv), an immigrant may not cancel his removal unless he can demonstrate that he "is not inadmissible under [ § 1182(a)(2) ]."

Arevalo countered by requesting a waiver of inadmissibility under 8 U.S.C. § 1182(h), under which "[t]he Attorney General may, in his discretion, waive the application of [ § 1182(a)(2) ] if," among other things, "the Attorney General ... has consented to the alien's applying or reapplying for a visa, for admission to the United States, or adjustment of status." The IJ rejected Arevalo's petition and concluded that the waiver provision of § 1182(h) is not available to applicants for cancellation of removal under the Special Rule. Because he could not cleanse his record of inadmissibility under § 1182(a)(2)(A)(i), he failed to meet the criteria of the Special Rule. His application for cancellation of removal was therefore denied. Arevalo timely appealed, and the BIA affirmed the IJ's reasoning.

In rejecting Arevalo's petition for a § 1182(h) waiver, both the IJ and the BIA relied on precedent established by the BIA in Matter of Y–N–P– , 26 I & N Dec. 10 (BIA 2012). In that opinion, the BIA analyzed the interplay between the § 1182(h) waiver and the Special Rule and concluded that a Special Rule applicant is not entitled to obtain a § 1182(h) waiver in connection with his application for cancellation of removal. Arevalo now appeals, asking this Court to review and reject the BIA's interpretation of § 1182(h) in this context.

STANDARD OF REVIEW

This Court reviews questions of law, including questions of statutory interpretation, de novo , subject to the principles of deference articulated in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc. , 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Where the BIA has interpreted an ambiguous provision of the INA in a published, precedential decision, we defer to its interpretation under Chevron , as long as it reflects a permissible construction of the statute. See Negusie v. Holder , 555 U.S. 511, 516–17, 129 S.Ct. 1159, 173 L.Ed.2d 20 (2009).

DISCUSSION

The BIA clearly and directly addressed the legal question at issue here in its published, precedential opinion Matter of Y–N–P– , 26 I & N Dec. 10 (BIA 2012). In deciding Arevalo's case, the IJ and the BIA relied directly upon the BIA's conclusions of law in Matter of Y–N–P– . Thus, there is no dispute in this appeal that we must review the BIA's interpretation of § 1182(h) in Matter of Y–N–P– through the deferential lens of Chevron . See Quinchia v. U.S. Atty. Gen. , 552 F.3d 1255, 1258 (11th Cir. 2008) ("The Supreme Court has [ ] instructed that the ‘principles of Chevron deference are applicable’ to the BIA ‘as it gives ambiguous statutory terms concrete meaning through a process of case-by-case adjudication.’ ") (citing INS v. Aguirre–Aguirre, 526 U.S. 415, 424–25, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) ). If we conclude that the BIA's interpretation in Matter of Y–N–P– is entitled to deference, the BIA's disposition of Arevalo's case must be affirmed.

Under Chevron , "[w]hen a court reviews an agency's construction of the statute which it administers ... [and] the statute is silent or ambiguous with respect to the specific issue, the question for the

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court is whether the agency's answer is based on a permissible construction of the statute." Chevron, 467 U.S. at 842–43, 104 S.Ct. 2778. "In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency." Id. at 844, 104 S.Ct. 2778. See also United States v. Mead Corp. , 533 U.S. 218, 226–27, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) ( "[A]dministrative implementation of a particular statutory provision qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.").

Chevron thus prescribes a two-step analysis. First, we ask whether the statute at issue is ambiguous, which requires the Court to consider "whether Congress has directly spoken to the precise question at issue." Vidiksis v. EPA, 612 F.3d 1150, 1154 (11th Cir. 2010) (quoting Chevron , 467 U.S. at 842–45, 104 S.Ct. 2778 ) (internal quotation marks omitted). If the statute is unambiguous, the Court applies it according to its terms and no deference is due. Carcieri v. Salazar , 555 U.S. 379, 387, 129 S.Ct. 1058, 172 L.Ed.2d 791 (2009) ; see also Chevron , 467 U.S. at 842–43, 104 S.Ct. 2778 (If "the intent of Congress is clear, that is...