Husic v. Holder
| Decision Date | 08 January 2015 |
| Docket Number | Docket No. 14–607. |
| Citation | 776 F.3d 59 |
| Parties | Hasim HUSIC, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Second Circuit |
OPINION TEXT STARTS HERE
Michael P. DiRaimondo (Marialaina L. Masi, Thomas E. Moseley, Stacy A. Huber, on the brief), DiRaimondo & Masi, LLP, Melville, NY, for Petitioner.
Yedidya Cohen, Trial Attorney, Office of Immigration Litigation; Stuart F. Delery, Assistant Attorney General, Civil Division; Jennifer Williams, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.
(Russell R. Abrutyn, Troy, Michigan, and Mary Kenney, Washington, D.C., for Amici Curiae American Immigration Lawyers Association and the American Immigration Council.).
Before: KATZMANN, Chief Judge, WINTER, Circuit Judge, and MARRERO, * District Judge.
Petitioner Hasim Husic, a native of the former Yugoslavia and citizen of Montenegro, seeks review of a February 4, 2014 non-precedential decision of the Board of Immigration Appeals (“BIA”) affirming the September 18, 2013 decision of an Immigration Judge (“IJ”) (Sagerman, I.J.), which ordered Husic's removal, denied his request for a waiver of inadmissibility under Immigration and Nationality Act (“INA”) § 212(h), 8 U.S.C. § 1182(h), and denied his request for a continuance. In re Hasim Husic, No. A073 535 928 (BIA Feb. 4, 2014), aff'g No. A073 535 928 (Immig.Ct.Fishkill, N.Y. Sept. 18, 2013).
This case presents an issue of first impression in this Circuit—whether an alien who lawfully entered the country without lawful permanent resident (“LPR”) status but later adjusted to LPR status is eligible to seek a waiver of inadmissibility under INA § 212(h). We join seven sister Circuits and find that an alien like Husic is unambiguously not “an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence.” INA § 212(h), 8 U.S.C. § 1182(h). Husic is therefore eligible to seek a waiver under INA § 212(h) if the Attorney General chooses to exercise favorable discretion. Husic concedes, however, that his challenge to the denial of his request for a continuance is moot. Accordingly, we GRANT the petition in part, VACATE Husic's removal order to permit his application for a waiver of inadmissibility under § 212(h), DISMISS the remainder of the petition as moot, and REMAND for further proceedings consistent with this Opinion.
Petitioner is a 65–year–old native of the former Yugoslavia and citizen of Montenegro. He entered the United States as a B–2 visitor on or about July 5, 1994, was subsequently granted political asylum in 1995, and became an LPR on July 28, 1998 based upon an application for adjustment of status. Husic's wife of 39 years is also an LPR. He and his wife are the parents of three children, two LPRs and a U.S. citizen.
On or about August 21, 2012, Husic pleaded guilty to violating New York Penal Law § 265.03, attempted criminal possession of a weapon in the second degree. He was sentenced to three years' incarceration.
Then, on or about February 11, 2013, Husic was served with a Notice to Appear. He was charged with removability pursuant to INA § 237(a)(2)(C) and 237(a)(2)(A)(iii). Removal proceedings commenced before the IJ. Husic eventually admitted to the allegations in the Notice to Appear, admitted the charge of removability based on a firearms offense, and denied the two removal charges based on aggravated felonies. Counsel then informed the IJ of Husic's intention to apply for a waiver under INA § 212(h)(1)(B).
On September 18, 2013, the IJ issued an oral decision. He held that Husic's conviction constituted an aggravated felony under both INA § 101(a)(43)(F) and 101(a)(43)(U). The IJ further held that, although Husic “expressed his desire to apply for adjustment of status under Section 245 of the [INA] with a waiver of inadmissibility under Section 212(h),” Husic was not eligible for such relief because he is an LPR who has been convicted of an aggravated felony and therefore “cannot obtain the necessary waiver under Section 212(h) ..., as is the prevailing view of the immigration laws here in the Second Circuit.” Special App. 4. Finally, the IJ denied Husic's motion for a continuance to pursue a collateral attack of the conviction.
Husic appealed to the BIA, and on February 4, 2014, the BIA dismissed the appeal, largely adopting the IJ's reasoning. The instant petition for review was timely filed on February 26, 2014.1
On appeal, Husic challenges the IJ and BIA's decisions (1) finding that he is ineligible for adjustment of status under INA § 245 because he was convicted of an aggravated felony and is therefore ineligible for a § 212(h) waiver and (2) denying his application for a continuance to pursue post-conviction relief.
We review questions of law de novo, but must give appropriate deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council Inc. (“ Chevron ”), 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), to the Board's interpretation of the INA. Ganzhi v. Holder, 624 F.3d 23, 28 (2d Cir.2010) (per curiam).
We first consider whether the IJ and BIA erred in finding that Husic is ineligible to seek a waiver of inadmissibility under INA § 212(h).2 The critical issue is whether Husic is “an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence.” INA § 212(h), 8 U.S.C. § 1182(h). If he is such an alien, he is statutorily barred from seeking a § 212(h) waiver, but if he is not, he would be able to seek that discretionary relief.
By way of background, Husic requests a discretionary adjustment of status under INA § 245(a). To be eligible for such adjustment, however, he must, inter alia, be “admissible to the United States for permanent residence.” 8 U.S.C. § 1255(a)(2). To determine Husic's admissibility, we turn to the requirements contained in INA § 212. The parties agree that he is inadmissible under § 212(a)(2), presumably because Husic has been convicted of “a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime.” 3Id. § 1182(a)(2)(A)(i)(I). Nevertheless, Husic might be eligible to seek a waiver of his inadmissibility under § 212(h)(1)(B) because he is the spouse of an LPR and the parent of both a citizen and two LPRs. Section 212(h)(1)(B) provides that the Attorney General may, in his discretion, waive a bar on admissibility based on § 212(a)(2)(A)(i)(I) if removal would “result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien.” Id. § 1182(h)(1)(B). “[I]n the case of an alien who has previously been admitted to the United States as an alien lawfullyadmitted for permanent residence,” however, a waiver is barred if “since the date of such admission the alien has been convicted of an aggravated felony.” Id. § 1182(h).
The INA also defines two sets of terms contained in § 212(h) that are central to this petition. INA § 101(a)(13)(A) provides that “[t]he terms ‘admission’ and ‘admitted’ mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” Id. § 1101(a)(13)(A). Additionally, INA § 101(a)(20) defines the term “lawfully admitted for permanent residence” as “the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.” Id. § 1101(a)(20).
Husic contends that although he was convicted of an aggravated felony, the § 212(h) aggravated-felony bar does not apply to him because he is not “an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence.” He reasons that he was admitted to the United States as a visitor, and not as an LPR, and therefore attained LPR status through adjustment of status, rather than when he was admitted into the country. Seven of our sister Circuits have held that a person in Husic's position is eligible to seek a waiver of inadmissibility based upon the plain language of § 212(h). See, e.g., Hanif v. Att'y Gen., 694 F.3d 479 (3d Cir.2012); Bracamontes v. Holder, 675 F.3d 380 (4th Cir.2012); Martinez v. Mukasey, 519 F.3d 532 (5th Cir.2008); Stanovsek v. Holder, 768 F.3d 515 (6th Cir.2014); Papazoglou v. Holder, 725 F.3d 790 (7th Cir.2013); Negrete–Ramirez v. Holder, 741 F.3d 1047 (9th Cir.2014); Lanier v. U.S. Att'y Gen., 631 F.3d 1363 (11th Cir.2011). But see Roberts v. Holder, 745 F.3d 928 (8th Cir.2014) (per curiam) (). Relying on these cases and a textual analysis of the provisions at issue, Husic argues that § 212(h) has been made unavailable only to an alien who was admitted as an LPR, rather than one who, like Husic, adjusted to LPR status once already in the United States after lawful entry as a visitor.
In response, the government contends that Husic is barred from seeking a § 212(h) waiver because the BIA reasonably interpreted the ambiguous provision to find that Husic is “an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence.” Under the BIA's interpretation, Husic was “admitted to the United States as an alien lawfully admitted for permanent residence” when he obtained LPR status following the approval of his application for adjustment of status. In support of its view, the government relies on the one Circuit decision adopting its view, see Roberts, 745 F.3d 928, as well as intratextual arguments, legislative history, and a purposive invocation to avoid absurd results.
We afford “...
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