Dobrova v. Holder, Docket No. 09-2046-ag.

• Decision Date: 09 June 2010
• Docket Number: Docket No. 09-2046-ag.
• Citation: 607 F.3d 297
• Parties: Faton DOBROVA, Petitioner,v.Eric H. HOLDER, Jr., United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

607 F.3d 297

Faton DOBROVA, Petitioner,v.Eric H. HOLDER, Jr., United States Attorney General, Respondent.

Docket No. 09-2046-ag.

United States Court of Appeals, Second Circuit.

Argued: Jan. 22, 2010.

Decided: June 9, 2010.

Matthew L. Guadagno (Jules E. Coven & Kerry W. Bretz, on the brief), Bretz & Coven LLP, New York, N.Y., for Petitioner.

Remi Adalemo, Attorney, Office of Immigration Litigation (Tony West, Assistant Attorney General & Luis E. Perez, Senior Litigation Counsel, Office of Immigration Litigation, on the brief), U.S. Department of Justice, Civil Division, Washington, D.C., for Respondent.

Before WALKER, STRAUB, and LIVINGSTON, Circuit Judges.

DEBRA ANN LIVINGSTON, Circuit Judge:

This petition calls upon us to interpret the word “previously” as it is used in Section 212(h) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(h), related to waivers of inadmissibility. Petitioner Faton Dobrova seeks review of an April 16, 2009 decision of the Board of Immigration Appeals (“BIA”) In re Dobrova, No. A 036 269 650 (B.I.A. Apr. 16, 2009), dismissing his appeal from a November 27, 2007 decision and order of Immigration Judge (“IJ”) Annette S. Elstein, No. A 036 269 650 (Immig. Ct. N.Y. City Nov. 27, 2007), finding him ineligible for a waiver of inadmissibility pursuant to Section 212(h), denying his application for adjustment of status, and ordering him removed. The BIA determined that in May 1983 Dobrova had “previously been admitted to the United States as an alien lawfully admitted for permanent residence” and that Section 212(h) therefore rendered him ineligible for a waiver of inadmissibility on two separate grounds: (1) that since the date of this admission, he had been convicted of an aggravated felony; and (2) that he had not lawfully resided continuously in the United States for a period of at least seven years immediately preceding the initiation of proceedings to remove him. Dobrova argues that Section 212(h) is inapplicable here on the theory that, although he was lawfully admitted for permanent residence in 1983, his most recent 2001 entry to the United States was deemed by the IJ to have been unlawful so that he is not an alien who has previously-meaning most recently-been admitted for lawful permanent residence for the purpose of Section 212(h). Because we find the relevant provision to be unambiguous and Dobrova's interpretation of “previously,” as used in Section 212(h), to be in error, we deny Dobrova's petition for review.

BACKGROUND

Dobrova, a native of the former Yugoslavia and a citizen of Macedonia, entered the United States at Anchorage, Alaska on May 31, 1983, as a lawful permanent resident (“LPR”). On March 16, 1988, he was convicted of sexual abuse of a minor in the second degree in violation of Alaska Statute § 11.41.436(a)(1), an offense he committed on June 26, 1987. He was sentenced to four years' imprisonment, with two years suspended, and to three years' probation.

On September 15, 1988, the former Immigration and Naturalization Service (“INS”) ¹ filed an Order to Show Cause charging that Dobrova was subject to deportation under former INA § 241(a)(4) as an alien who had been convicted of a crime involving moral turpitude-the Alaska sexual abuse of a minor conviction-committed within five years of entry and for which he received a sentence of confinement for a year or more. On June 29, 1989, an IJ issued a decision ordering Dobrova deported to Yugoslavia. Dobrova unsuccessfully appealed to the BIA, but did not seek this Court's review of the BIA's decision. He was deported on November 16, 1989.

Sometime in 2000-over ten years later-Dobrova's United States citizen wife applied for and received a reentry permit for Dobrova. On February 19, 2001, Dobrova entered the United States ostensibly as an LPR after he presented the reentry permit and his defunct permanent resident card. Some five years later, on or about March 30, 2006, Dobrova was apprehended and detained at a federal detention facility.² That same day, DHS commenced removal proceedings against Dobrova by issuing a Notice to Appear (“NTA”). The NTA alleged inter alia, that Dobrova was admitted to the United States on February 19, 2001 “as a lawful permanent resident,” a status Dobrova was “not entitled to.”

On April 14, 2006, Dobrova's United States citizen son filed an I-130 visa petition to classify Dobrova as an immediate relative under 8 U.S.C. § 1151(b), INA § 201(b), which exempts certain categories of aliens-such as children, spouses, and parents of a United States citizen-from numerical visa limitations. 8 U.S.C. § 1151(b). In conjunction with his son's visa petition, Dobrova filed an application in December 2006 to adjust status pursuant to 8 U.S.C. § 1255, INA § 245, which allows certain aliens physically present in the United States to apply for adjustment of status to that of an alien lawfully admitted for permanent residence. 8 U.S.C. § 1255(i). Because of his prior criminal conviction for a crime involving moral turpitude, which rendered him statutorily inadmissible pursuant to INA § 212(a)(2), 8 U.S.C. § 1182(a)(2), Dobrova also filed an application for a waiver of inadmissibility under Section 212(h).

At his January 9, 2007 removal hearing, Dobrova conceded his removability and requested relief in the form of adjustment of status in conjunction with a waiver of inadmissibility. Citing Section 212(h), DHS moved to pretermit Dobrova's requested relief, arguing that Dobrova was statutorily ineligible since he had been previously admitted as an LPR and then convicted of an aggravated felony-the Alaska conviction-and because he was unable to establish that he had resided continuously in the United States for the requisite seven years immediately preceding the date of proceedings to remove him. The IJ adjourned the hearing to allow the parties to brief this issue.

Dobrova did not contest before the IJ that he was not entitled to be admitted as a lawful permanent resident when he reentered the United States in 2001. He argued that this most recent entry was nevertheless the controlling event for determining Section 212(h)'s applicability and that precisely because this most recent entry was not a lawful admission for permanent residence, Section 212(h) did not apply to him. Dobrova contended that “previously,” as used in Section 212(h), denotes “most recently” and that because he had not been “most recently” admitted to the United States as an alien lawfully admitted for permanent residence, Section 212(h) was inapplicable. The IJ rejected this argument, determining on November 27, 2007 in a written decision that Dobrova was ineligible for a waiver of inadmissibility pursuant to Section 212(h). Relying on Dobrova's first admission to the United States in 1983 as an LPR, the IJ concluded that Dobrova's prior conviction and failure to satisfy the lawful continuous residency requirement disqualified him from Section 212(h) eligibility.³ Dobrova appealed to the BIA, which, on April 16, 2009, held that since Dobrova was “previously ... admitted to the United States” as a permanent resident in 1983 and had subsequently been convicted of an aggravated felony and had failed to establish seven years of continuous lawful residence before the initiation of removal proceedings, Dobrova was ineligible for a Section 212(h) waiver.

Dobrova timely appealed the BIA's decision to this Court.

DISCUSSION

“Where, as here, the BIA adopts the IJ's reasoning and offers additional commentary, we review the decision of the IJ as supplemented by the BIA.” Wala v. Mukasey, 511 F.3d 102, 105 (2d Cir.2007). While the BIA's interpretation of immigration statutes is generally entitled to Chevron deference, interpretations in non-precedential unpublished BIA decisions, as in the instant case, are not so entitled. Mendis v. Filip, 554 F.3d 335, 338 (2d Cir.2009); Garcia-Padron v. Holder, 558 F.3d 196, 199 (2d Cir.2009). Whether unpublished BIA opinions are entitled to Skidmore deference or whether they are reviewed de novo is an open question in this Circuit. Mendis, 554 F.3d at 338 n. 3. We need not answer that question here, however, because even on de novo review, we find the meaning of “previously” in Section 212(h) to be clear and unambiguous. Although this Court has, in some circumstances, remanded to the BIA so that the BIA could by published opinion interpret a statute it is charged with enforcing see, e.g., Jian Hui Shao v. BIA, 465 F.3d 497, 502-03 (2d Cir.2006), since here we determine that the text of the relevant statute is clear, and the only question presented on appeal is a purely legal one, remand to the BIA for precedential interpretation in the first instance is unnecessary see Phong Thanh Nguyen v. Chertoff, 501 F.3d 107, 111 (2d Cir.2007).

Pursuant to Section 212(h), the Attorney General may, in his discretion, waive certain grounds of inadmissibility, including inadmissibility for commission of a crime of moral turpitude. 8 U.S.C. § 1182(h); Jankowski-Burczyk v. INS, 291 F.3d 172, 175 n. 1 (2d Cir.2002). Section 212(h) provides, however, that

[n]o 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.

8 U.S.C. § 1182(h) (emphasis added).

Disputed in the instant case is the interpretation of “previously” in the phrase “has previously been admitted to the United States as an alien lawfully admitted for permanent residence.” The government argues-and the IJ and BIA determined-that an alien who “has previously been admitted” to the United States as an LPR denotes an alien who...