Hanif v. Attorney Gen. of United States

• Citation: 694 F.3d 479
• Decision Date: 14 September 2012
• Docket Number: No. 11–2643.,11–2643.
• Parties: Zaman Sattaur HANIF, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

694 F.3d 479

Zaman Sattaur HANIF, Petitioner

v.ATTORNEY GENERAL OF the UNITED STATES, Respondent.

No. 11–2643.

United States Court of Appeals, Third Circuit.

Argued April 11, 2012.

Opinion Filed: Sept. 14, 2012.

Ryan A. Muennich, Esquire (argued), Muennich & Bussard, New York, NY, for Petitioner.

Mary A. Kenney, Esquire, Benjamin R. Winograd, Esquire (argued), American Immigration Council, Washington, DC, for Amicus.

Eric H. Holder, Jr., Esquire (Did not enter an appearance), Rachel L. Browning, Esquire (argued), Joseph D. Hardy, Jr., Esquire, Thomas W. Hussey, Esquire, Justin R. Markel, Esquire, Blair O'Connor, Esquire, United States Department of Justice,Office of Immigration Litigation, Civil Division, Washington, DC, for Respondent.

Before: HARDIMAN, GREENAWAY, JR. and GREENBERG, Circuit Judges.

OPINION

GREENAWAY, JR., Circuit Judge.

Petitioner Zaman Sattaur Hanif (“Hanif” or “Petitioner”) seeks review of the decision of the Board of Immigration Appeals (“BIA”) ¹ finding him statutorily ineligible for relief from removal under 8 U.S.C. § 1182(h). ² Applying the precedent of Matter of Koljenovic, 25 I. & N. Dec. 219 (BIA 2010), the BIA found that Hanif was a lawful permanent resident (“LPR”), and that his date of admission was May 17, 2006, the date he was granted LPR status. Thus, he had not satisfied the seven years of continuous residence required by the statute. Hanif argues that the language of the statute is clear, and that he has never been “admitted” ³ to the United States “as an alien lawfully admitted for permanent residence.” ⁴ Rather, he acquired his LPR status while in the United States, never having been admitted for that purpose.

For the reasons set forth below, we find that the language of the statute is clear and unambiguous on its face. Therefore, we will accord no deference to the BIA's interpretation, which we find to be at odds with the wording and clear meaning of the statute. We will grant the petition, vacate the BIA's decision, and remand for further proceedings consistent with this opinion.

I. Facts/background

Hanif is a citizen of Guyana currently detained by immigration authorities pending the outcome of his removal proceedings. Although the exact details are not clear, Hanif entered the United States on a fraudulent visa at some point during the 1980s.⁵ After his marriage to Shakirah Hattim, a naturalized citizen, Hanif applied for a waiver of his ground of inadmissibility. On May 17, 2006, a New York Immigration Judge (“IJ”) granted Hanif's application and adjusted Hanif to LPR status. Prior to his detention, Hanif resided in the Bronx, New York with his wife and two children. Also living in the Bronx area are Hanif's parents and five siblings, all either naturalized citizens or lawful permanent residents.

According to the PSI, in June of 2008, Minoutie Khadoo, a girlfriend of Hanif's nephew, was arrested for possession of a forged instrument. In exchange for reduced charges against Khadoo, Hanif turned over $5,100 in counterfeit bills to the New York State Office of Tax Enforcement (“OTE”) and offered to cooperate and work with the OTE and the United States Secret Service in their ongoing counterfeiting investigation. However, after a request by the Secret Service to take a polygraph examination, Hanif fled the country. On August 22, 2008, a warrant for Hanif's arrest was issued by the United States District Court for the Eastern District of New York.

In early December 2008, the Secret Service was notified that Hanif would fly to the United States from Guyana to surrender. Hanif arrived at John F. Kennedy International Airport on December 16, 2008. He was arrested and paroled into the United States for purposes of prosecution for counterfeiting. On May 12, 2009, Hanif pled guilty to dealing in counterfeit United States currency, 18 USC § 473, and, on September 8, 2009, was sentenced to four months in prison.

On December 8, 2009, the Department of Homeland Security served Hanif with a “Notice to Appear,” charging him with inadmissibility by virtue of his federal conviction under the Immigration and Nationality Act 8 U.S.C., § 1182(a)(2)(A)(i)(I).⁶ On January 21, 2010, Hanif conceded his inadmissibility as charged. Hanif then sought a waiver of inadmissibility under 8 U.S.C. 1182(h)⁷ and submitted the corresponding I–601 Application for Waiver on Ground of Excludability on February 17, 2010, claiming that removal would cause extreme hardship to his wife and children.

On January 11, 2011, an IJ denied Hanif's application, finding him ineligible for a waiver under 8 U.S.C. 1182(h), pursuant to the BIA's decision in Matter of Koljenovic. Specifically, the IJ noted that “the Board of Immigration Appeals held [in Matter of Koljenovic ] that an alien who entered the United States without inspection and later obtained lawful permanent residence [sic] status through adjustment [of] status has previously been ‘admitted as a lawful permanent resident, and therefore, must satisfy the seven year continuous residence requirement at Section 212(h).’ ” (Admin. R. 53–54.) On May 27, 2011, the BIA adopted and affirmed the IJ's order. On June 17, 2011, Hanif petitioned this Court for review of the BIA's decision.

II. Jurisdiction

The BIA has jurisdiction to review the IJ's decision under 8 C.F.R. § 1003.1(b)(3). In general, “courts of appeals ... have no jurisdiction to review [the BIA's] discretionary and factual determinations presented in petitions for review.” Jarbough v. Att'y Gen., 483 F.3d 184, 188 (3d Cir.2007). However, this Court has jurisdiction, pursuant to 8 U.S.C. § 1252(a)(2)(D), to review the BIA's final order for constitutional claims and questions of law. See Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d Cir.2006) (“By virtue of § 1252(a)(2)(D), constitutional claims or questions of law raised in a petition for review elude the jurisdiction-stripping provisions of the INA.”). Petitioner challenges the BIA's statutory interpretation of 8 U.S.C. § 1182(h), thus raising a question of law within the meaning of § 1252(a)(2)(D). Accordingly, we can exercise jurisdiction over this petition for review.

III. Standard of Review

When the BIA issues its own decision on the merits, rather than a summary affirmance, we review its decision, not that of the IJ. Sheriff v. Att'y Gen., 587 F.3d 584, 588 (3d Cir.2009). When, however, the Board adopts and affirms the IJ's decision, as it did here, we have authority to review both decisions. See Sandie v. Att'y Gen., 562 F.3d 246, 250 (3d Cir.2009) ( “Inasmuch as the BIA deferred to the IJ's credibility determinations and adopted the reasons the IJ set forth, we have authority to review both determinations.”) (quoting Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004)).

“The BIA's factual findings are reviewed for substantial evidence.” Briseno–Flores v. Att'y Gen., 492 F.3d 226, 228 (3d Cir.2007) (citing 8 U.S.C. § 1252(b)(4)(B)). We review legal determinations de novo, subject to the principles of deference articulated in Chevron v. Natural Resources Defense Council, 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Id. at 228.

IV. Analysis

When considering the propriety of an agency's interpretation of a statute, we must turn to the analytical structure set forth by the Supreme Court in Chevron, 467 U.S. at 842–43, 104 S.Ct. 2778. “Under the familiar two-step Chevron inquiry, first, if the statute is clear we must give effect to Congress'[s] unambiguous intent, and, second, if the statute is silent or ambiguous with respect to a specific issue, we defer to an implementing agency's reasonable interpretation of that statute.” De Leon–Ochoa v. Att'y Gen., 622 F.3d 341, 348 (3d Cir.2010).

Regarding the first step, the Supreme Court noted that “[t]he judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent. If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect.” Chevron, 467 U.S. at 843 n. 9, 104 S.Ct. 2778 (citations omitted).

We have adopted limitations on the first step of the Chevron test.

As this Court has observed, “a blind adherence to the literal meaning of a statute [could] lead to a patently absurd result that no rational legislature could have intended. Following the letter, rather than the spirit, of the law in such cases would go against the court's role of construing statutes to effectuate the legislature's intent.”

Barrios v. Att'y Gen., 399 F.3d 272, 277 n. 11 (3d Cir.2005) (quoting Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 569 (3d Cir.2002) (in turn citing United States v. Schneider, 14 F.3d 876, 880 (3d Cir.1994) ( “It is the obligation of the court to construe a statute to avoid absurd results, if alternative interpretations are available and consistent with the legislative purpose.”))).

As to the second step, the Supreme Court stated that a “court need not conclude that the agency construction was the only one it permissibly could have adopted to uphold the construction, or even the reading the court would have reached if the question initially had arisen in a judicial proceeding.” Chevron, 467 U.S. at 843 n. 11, 104 S.Ct. 2778.

Petitioner and amicus argue that the language of the statute is clear, and this Court therefore need only read the statute in order to conclude that it does not apply to him. That is, according to Petitioner, he was never “admitted” to this country “as an alien lawfully admitted for permanent residence.” Although his status is that of “an alien lawfully admitted for permanent residence,” as defined by 8 U.S.C. § 1101(a)(20), he has never been admitted to the United States, since he originally entered the country illegally.

Although asserting that we need not go beyond the plain meaning of the statute, Petitioner also argues that the statute...