Artola v. Garland
| Decision Date | 05 May 2021 |
| Docket Number | No. 19-1286,19-1286 |
| Citation | 996 F.3d 840 |
| Parties | Fredis ARTOLA, also known as Jose Walter Merlos Giron, Petitioner v. Merrick B. GARLAND, Attorney General of the United States, Respondent |
| Court | U.S. Court of Appeals — Eighth Circuit |
Kelsey J. Friberg, David L. Wilson, WILSON LAW GROUP, Minneapolis, MN, for Petitioner.
Peter B. Berg, U.S. IMMIGRATION & NATURALIZATION SERVICE, Bloomington, MN, Tracie Nicole Jones, Trial Attorney, Carl H. McIntyre, Joseph Anthony O'Connell, U.S. DEPARTMENT OF JUSTICE, Civil Division, Office of Immigration Litigation, Washington, DC, for Respondent.
Before GRUENDER, ERICKSON, and KOBES, Circuit Judges.
Fredis Artola petitions us to review the Board of Immigration Appeals’ ("BIA") decision denying his request for cancellation of removal. Artola argues that his grant of Temporary Protected Status ("TPS") obviates the need for him to demonstrate he was "admitted" in order to be eligible for cancellation of removal. Alternatively, he argues that his grant of TPS is an "admission" for cancellation-of-removal purposes. We disagree with both contentions, so we deny Artola's petition.
Artola, a native and citizen of El Salvador, entered the United States in 1998 without inspection. On March 25, 2003, he received TPS. In May 2008, he gained lawful-permanent-resident status. On April 6, 2012, Minnesota police found cocaine in Artola's possession, and he was subsequently convicted of drug possession under Minnesota law. In February 2018, Artola left the United States for a trip. When he returned, the U.S. Department of Homeland Security learned of Artola's cocaine conviction, deferred Artola's inspection, and ultimately sought his removal from the country.
Before an Immigration Judge ("IJ"), Artola applied for cancellation of removal pursuant to 8 U.S.C. § 1229b(a). Under § 1229b(a), an immigrant's removal may be cancelled if he has (i) been lawfully admitted for permanent residency for at least five years, (ii) resided in the United States continuously for seven years after having been admitted in any status, and (iii) not been convicted of an aggravated felony. The IJ denied Artola's request, concluding that Artola failed the second condition because he did not meet the seven-year-residency requirement. Artola appealed the IJ's decision to the BIA, which affirmed the IJ's decision and reasoning. Artola petitions for our review.
We review an agency's legal determinations de novo . Llapa-Sinchi v. Mukasey , 520 F.3d 897, 899 (8th Cir. 2008).1 Where, as here, the BIA issues a separate opinion rather than summarily affirming the IJ's decision, we review the BIA's decision as the final agency action. See Alzawed v. Barr , 970 F.3d 997, 1000 (8th Cir. 2020). To the extent the BIA adopted the IJ's reasoning, we review the IJ's decision too. Id.
This case presents a narrow question of statutory interpretation, which is an issue of first impression in our circuit. Both parties agree that Artola's residency clock stopped in April 2012 when Minnesota police found cocaine in his possession. See 8 U.S.C. § 1229b(d)(1)(B). The only question is when Artola's residency clock started. Artola argues that it started when he received TPS for two reasons: either because his grant of TPS obviates the need to show that he was "admitted" in order to obtain cancellation of removal or, alternatively, because his grant of TPS was itself an admission for cancellation-of-removal purposes. We take each argument in turn.
To be eligible for cancellation of removal under § 1229b(a), Artola must show, inter alia , that he "has resided in the United States continuously for 7 years after having been admitted in any status." The provision's plain language makes an "admission" a prerequisite to starting the seven-year clock.
Artola acknowledges this language but argues that § 1254a(e) creates an exception to § 1229b(a) ’s admission requirement. Section 1254a(e) states that:
With respect to an alien granted temporary protected status under this section, the period of such status shall not be counted as a period of physical presence in the United States for purposes of section 1229b(a) of this title unless the Attorney General determines that extreme hardship exists. Such period shall not cause a break in the continuity of residence of the period before and after such period for purposes of such section.
From § 1254a(e), Artola argues that time in TPS counts toward the seven-year-residency requirement even without a prior admission so long as the Attorney General finds extreme hardship.2 But Artola reads too much from too little.
"Our analysis begins, as always, with the statutory text." Argus Leader Media v. U.S. Dep't of Agric. , 740 F.3d 1172, 1175 (8th Cir. 2014). Here, the plain language of § 1254a(e) in no way indicates that it is creating an exception to § 1229b(a)(2) ’s admission requirement. The "shall-not-unless" construction of § 1254a(e)’s first sentence indicates that, for those relying on time in TPS to satisfy the seven-year-residency requirement, a finding of extreme hardship is a necessary but not sufficient finding. See I.N.S. v. Doherty , 502 U.S. 314, 322-23, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992) (); Gamero v. Barr , 929 F.3d 464, 472 (7th Cir. 2019) ; Manor Care, Inc. v. United States , 630 F.3d 1377, 1381-82 (Fed. Cir. 2011). And § 1254a(e)’s second sentence merely states that a grant of TPS does not break an existing period of residence, which similarly does not suggest that TPS recipients need not show an admission. We agree with the only other circuit to have considered this question that § 1254a(e) does not eliminate § 1229b(a)(2) ’s admission requirement. See Chavez v. Holder , 587 F. App'x 43, 45-46 (4th Cir. 2014) (per curiam). Rather, § 1254a(e) imposes an additional requirement for those seeking to use their time in TPS toward the seven-year-residency requirement—they must also show that the Attorney General has made an extreme-hardship finding.
Artola counters that, if § 1254a(e) does not create an exception to the admission requirement, it does nothing at all. He argues that, if someone has already been admitted in a different status, they can rely on that admission to satisfy § 1229b(a)(2) and thus would never need to rely on the TPS grant. Thus, Artola claims, our interpretation renders § 1254a(e) superfluous. But even assuming that Artola is right, "our preference for avoiding surplusage constructions is not absolute."3 Lamie v. U.S. Tr. , 540 U.S. 526, 536, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004) ; see also Marx v. Gen. Revenue Corp. , 568 U.S. 371, 385, 133 S.Ct. 1166, 185 L.Ed.2d 242 (2013). And, for two reasons, that preference does not control here.
In Barton v. Barr , the Supreme Court acknowledged that its interpretation of one immigration statutory provision rendered another provision superfluous. 590 U.S. ––––, 140 S. Ct. 1442, 1453, 206 L.Ed.2d 682 (2020). Nonetheless, it explained that "redundancies are common in statutory drafting" and that "[s]ometimes the better overall reading of the statute contains some redundancy." Id. ; see also Rimini Street, Inc. v. Oracle USA, Inc. , 586 U.S. ––––, 139 S. Ct. 873, 881, 203 L.Ed.2d 180 (2019). Thus, the Court ultimately held that "[r]edundancy in one portion of a statute is not a license to rewrite or eviscerate another portion of the statute contrary to its text." Barton , 140 S. Ct. at 1453. So too here, Artola's proposed interpretation would have us rewrite § 1254a(e) to say something it does not, thereby eviscerating § 1229b(a)(2) ’s admission requirement for all TPS grantees. We may not do so, surplusage notwithstanding. See Owner-Operator Indep. Drivers Ass'n v. United Van Lines, LLC , 556 F.3d 690, 695 (8th Cir. 2009) ().
Additionally, the presumption against surplusage presumes a degree of carefulness in congressional drafting plainly absent here. Section 1254a(e) says that TPS "shall not be counted as a period of physical presence ... for purposes of section 1229b(a) ... unless the Attorney General determines that extreme hardship exists." § 1254a(e) (emphasis added). But § 1229b(a) requires a period of residency, not physical presence. Section 1229b(b), on the other hand, does require a period of physical presence, not residency. Thus, § 1254a(e) is facially nonsensical. In all likelihood, Congress either wrote " section 1229b(a)" when it meant " section 1229b(b)" or wrote "physical presence" when it meant "residence." But under either explanation the point remains the same—strict adherence to the canon against surplusage in this case makes little sense. See King v. Burwell , 576 U.S. 473, 491, 135 S.Ct. 2480, 192 L.Ed.2d 483 (2015) ().
As the Supreme Court has explained, when confronted with a choice between an interpretation that honors a statute's plain meaning but produces surplusage, and an interpretation that ignores the plain meaning but avoids surplusage, there is no choice at all—the plain meaning must control. See Lamie , 540 U.S. at 536, 124 S.Ct. 1023.
In sum, § 1254a(e) does not excuse § 1229b(a) ’s admission requirement for TPS recipients.
Artola alternatively argues that, even if he is required to show that he was "admitted," his TPS grant qualifies as an admission.
The law defines "admission" as "the lawful entry of the alien into the United States after inspection and authorization by an immigration officer." 8 U.S.C. § 1101(a)(13)(A). This definition refers to inspection and admission at a port-of-entry. Roberts v. Holder , 745 F.3d 928, 932 (8th Cir. 2014) ...
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