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

CourtU.S. Court of Appeals — Second Circuit
Writing for the CourtDEBRA ANN LIVINGSTON, Circuit
Citation607 F.3d 297
Decision Date09 June 2010
Docket NumberDocket No. 09-2046-ag.
PartiesFaton DOBROVA, Petitioner,v.Eric H. HOLDER, Jr., United States Attorney General, Respondent.

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.


607 F.3d 298
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

607 F.3d 299
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...

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69 practice notes
  • Rodriguez v. Nielsen, 16-CV-7092 (MKB)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • September 30, 2018
    ...necessarily begins with the plain meaning of a law's text and, absent ambiguity, will generally end there." (quoting Dobrova v. Holder, 607 F.3d 297, 301 (2d Cir. 2010))). Finally, to the extent Defendants are asserting an agency interpretation as to the review of applications pursuant to s......
  • Mary Jo C. v. N.Y. State & Local Ret. Sys., Docket No. 11–2215.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • January 29, 2013
    ...analysis necessarily begins with the plain meaning of the law's text, and, absent ambiguity, will generally end there.” Dobrova v. Holder, 607 F.3d 297, 301 (2d Cir.2010) (internal quotation marks omitted). “ ‘Because our task is to ascertain Congress's intent, we look first to the text and......
  • Morning Mist Holdings Ltd. v. Krys (In re Fairfield Sentry Ltd.), Docket No. 11–4376.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • April 16, 2013
    ...statute's temporal reach.” Carr v. United States, 560 U.S. 438, 130 S.Ct. 2229, 2236, 176 L.Ed.2d 1152 (2010); see also Dobrova v. Holder, 607 F.3d 297, 301 (2d Cir.2010)(relying on Congress's use of present perfect tense in statutory construction). In In re AroChem Corp., we were guided by......
  • No. 09-1520 v. Attorney Gen. Of The United States, Nos. 09-1520, 09-1760, 09-1960.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • October 1, 2010
    ...to only Skidmore, rather than Chevron, deference.”). Many Courts of Appeals have declined to announce a standard. See Dobrova v. Holder, 607 F.3d 297, 300 (2d Cir.2010) (“Whether unpublished BIA opinions are entitled to Skidmore deference or whether they are reviewed de novo is an open ques......
  • Request a trial to view additional results
70 cases
  • Rodriguez v. Nielsen, 16-CV-7092 (MKB)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • September 30, 2018
    ...necessarily begins with the plain meaning of a law's text and, absent ambiguity, will generally end there." (quoting Dobrova v. Holder, 607 F.3d 297, 301 (2d Cir. 2010))). Finally, to the extent Defendants are asserting an agency interpretation as to the review of applications pursuant to s......
  • Mary Jo C. v. N.Y. State & Local Ret. Sys., Docket No. 11–2215.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • January 29, 2013
    ...analysis necessarily begins with the plain meaning of the law's text, and, absent ambiguity, will generally end there.” Dobrova v. Holder, 607 F.3d 297, 301 (2d Cir.2010) (internal quotation marks omitted). “ ‘Because our task is to ascertain Congress's intent, we look first to the text and......
  • Morning Mist Holdings Ltd. v. Krys (In re Fairfield Sentry Ltd.), Docket No. 11–4376.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • April 16, 2013
    ...statute's temporal reach.” Carr v. United States, 560 U.S. 438, 130 S.Ct. 2229, 2236, 176 L.Ed.2d 1152 (2010); see also Dobrova v. Holder, 607 F.3d 297, 301 (2d Cir.2010)(relying on Congress's use of present perfect tense in statutory construction). In In re AroChem Corp., we were guided by......
  • No. 09-1520 v. Attorney Gen. Of The United States, Nos. 09-1520, 09-1760, 09-1960.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • October 1, 2010
    ...to only Skidmore, rather than Chevron, deference.”). Many Courts of Appeals have declined to announce a standard. See Dobrova v. Holder, 607 F.3d 297, 300 (2d Cir.2010) (“Whether unpublished BIA opinions are entitled to Skidmore deference or whether they are reviewed de novo is an open ques......
  • Request a trial to view additional results

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