Martinez v. Attorney Gen. of United States

• Citation: 693 F.3d 408
• Decision Date: 06 September 2012
• Docket Number: No. 11–2258.,11–2258.
• Parties: Erasmo Anibal MARTINEZ, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

693 F.3d 408

Erasmo Anibal MARTINEZ, Petitioner

v.ATTORNEY GENERAL OF the UNITED STATES, Respondent.

No. 11–2258.

United States Court of Appeals, Third Circuit.

Argued April 11, 2012.

Opinion filed: Sept. 6, 2012.

Raquiba Huq, Claudine Langrin, Timothy Block, Shifra Rubin, Melville D. Miller, Jr., Whitney Elliott, Esq. [ARGUED],

Legal Services of New Jersey, Edison, NJ, for Petitioner.

Tony West, Esq., David V. Bernal, Esq., Stuart S. Nickum, Esq. [ARGUED], United States Department of Justice, OIL, Washington, DC, for Respondent.

Before: MCKEE, Chief Judge, HARDIMAN, Circuit Judge and JONES, II, ^* District Judge.

OPINION OF THE COURT

JONES, II, District Judge.

Section 212(h) of the Immigration and Nationality Act (“INA”) expressly bars from status adjustment a non-citizen who has “previously been admitted to the United States as an alien lawfully admitted for permanent residence” but later is convicted of an aggravated felony. 8 U.S.C. § 1182(h)(1)(C)(2). This appeal presents a question of first impression in this Circuit: whether someone who was accorded the designation of “lawfully admitted for permanent residence” status upon physical entry into the United States, but who in fact did not substantively qualify for such designated status, is still barred from Section 212(h) relief. We determine that “admission” as an lawful permanent resident (“LPR”) in Section 212(h) refers to a procedurally regular entry, not a substantively compliant one. As we conclude here that the prohibition holds, we will deny the petition for review.

I. Background

Petitioner Erasmo Anibal Martinez, a native of Nicaragua, entered the United States without inspection in 1985. In October 1989, he married a United States citizen (who bore his daughter later that year), and began the process of adjusting his status to LPR. On September 15, 1990, Martinez was arrested and later charged in a four-count indictment before the Superior Court of New Jersey. On December 7, 1990, he pleaded guilty to sexual assault under N.J. Stat. § 2C:14–2(b), admitting that he had touched the vaginal area of his then-eight-year-old step-daughter.

In early 1991, after his plea but prior to his sentencing, Martinez travelled to Nicaragua to complete the immigrant visa application process. The United States consulate in Nicaragua approved his application on March 5, 1991. Martinez was admitted to the United States as a permanent resident the following day. On March 22, 1991, two weeks after he obtained permanent resident status, he was sentenced to four years in prison. Martinez was released on parole on November 9, 1992.

The Department of Homeland Security (“DHS”) initiated removal proceedings against Martinez in August 2009, and Martinez ultimately conceded that he was removable for having been convicted of an aggravated felony for sexual abuse of a minor. See8 U.S.C. §§ 1227(a)(2)(A)(iii) (setting forth grounds for removability), 1101(a)(43)(A) (defining aggravated felony). Martinez argued, however, that he was eligible for adjustment of status under former INA Section 212(c), which waived the bar against status adjustment for convicted aggravated felons in the case of certain LPRs.¹ DHS responded that Martinez was not eligible for a Section 212(c) waiver because he had not in fact been “lawfully admitted for permanent residence” (an eligibility requirement under Section 212(c)): he had failed to disclose his prior arrest and guilty plea on his original application for permanent resident status. The Immigration Judge (“IJ”) agreed.

In response, Martinez sought instead to readjust his status under INA Section 212(h)(1)(A), which allows for adjustment of alien status by the spouse, parent, son or daughter of a United States citizen where denial of such adjustment would constitute extreme hardship on either the alien or the citizen. Section 212(h), however, expressly bars from relief a non-citizen who has “previously been admitted to the United States as an alien lawfully admitted for permanent residence” but “since the date of admission ... has been convicted of an aggravated felony....” 8 U.S.C. § 1182(h)(1)(C)(2). With some creativity, Martinez argued that this bar could not apply to him because he was actually inadmissible at the time he was granted LPR status due to his failure to disclose his prior arrest and guilty plea at the time he entered the United States as an LPR.²

The IJ rejected Martinez's argument. While substantive satisfaction of LPR status was an underlying requirement for Section 212(c) waiver, the IJ found that the absence of such satisfaction did not equate to waiver of the Section 212(h) bar. Specifically, the IJ held that the Board of Immigration Appeals' (“BIA”) decision in In re Ayala–Arevalo, 22 I. & N. Dec. 398 (BIA 1998), controlled and Martinez was statutorily ineligible for Section 212(h) relief.

Martinez timely appealed to the BIA, arguing that he was eligible for Section 212(c) relief because the IJ erred in concluding that Martinez had never been “lawfully admitted for permanent residence.” In the alternative, Martinez contended that if the BIA determined that he had never been “lawfully admitted for permanent residence,” then it should find him eligible for a Section 212(h) waiver, thus overruling Ayala.

The BIA remained similarly unpersuaded. According to the Board, Martinez was ineligible for 212(c) relief because he had “never been lawfully admitted for permanent residence,” but he was also ineligible for 212(h) relief: “although [Martinez] has never been lawfully admitted for permanent residence” in a substantive manner, he had “previously been ‘admitted,’ even if that admission has subsequently been ‘determined to have been ... in violation of law.’ ” Pet.App. 8a (quoting Ayala at 401 (ellipsis in the original)). The Board concluded that Ayala compelled a finding that Martinez's aggravated felony conviction rendered him ineligible for a waiver of inadmissibility under Section 212(h), and the BIA declined to overturn Ayala.

Martinez then timely filed a petition for review of the Section 212(h) waiver question only, and later moved for a stay of removal, which was granted. ³ The Newark Immigration Court had jurisdiction under 8 C.F.R. § 1003.14(a) and the BIA had jurisdiction under 8 C.F.R. § 1003.1(b)(3). As Martinez seeks review of a final order of removal, this Court has jurisdiction under 8 U.S.C. § 1252(a).

II. Standard of Review

When, as here, the BIA affirms an IJ's decision and adds analysis of its own, we review both the IJ's and the BIA's decisions. Dia v. Ashcroft, 353 F.3d 228, 243 (3d Cir.2003) (en banc); Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir.2001). We review de novo questions of law, such as the proper construction of Section 212(h). Fadiga v. Att'y Gen., 488 F.3d 142, 153 (3d Cir.2007). Using all “traditional tools of statutory construction,” we must determine “whether Congress has directly spoken to the precise question at issue.” Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842, 843 n. 9, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). “If Congress has done so, [our] inquiry is at an end; [we] ‘must give effect to the unambiguously expressed intent of Congress.’ ” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) (quoting Chevron, 467 U.S. at 843, 104 S.Ct. 2778). If, however, the statute is “silent or ambiguous with respect to the specific issue,” we must assess “whether the agency's answer is based on a permissible construction.” Chevron, 467 U.S. at 843, 104 S.Ct. 2778. If so, then we must defer to that construction. Id. at 845, 104 S.Ct. 2778.

Unsurprisingly, Respondent urges us to apply Chevron deference here. Martinez, however, argues on two grounds that Chevron does not apply. First, Martinez claims that no statutory ambiguity exists, such that Congress clearly intended for the Section 212(h) waiver to apply to an individual like Martinez. Second, Martinez claims that even if such ambiguity does exist, it is for this Court to resolve without deference to the BIA's statutory construction, which would be due only if the BIA itself had interpreted Section 212(h). According to Martinez, in Ayala the BIA explicitly found that Section 212(h) “clearly precluded” waiver applicants such as himself; thus the BIA did not reach its own construction of the statute, and therefore this Court should not defer to the BIA's application of Section 212(h).

Martinez cites exclusively to caselaw from the D.C. Circuit and the Seventh Circuit in support of his argument against Chevron deference. See Reply Brief for Petitioner (“Pet. Reply”) at 7–8 (citing Arizona v. Thompson, 281 F.3d 248, 254 (D.C.Cir.2002); Peter Pan Bus Lines, Inc. v. Fed. Motor Carrier Safety Admin., 471 F.3d 1350, 1354 (D.C.Cir.2006); Escobar Barraza v. Mukasey, 519 F.3d 388, 391 (7th Cir.2008); U.S. Postal Service v. Postal Regulatory Comm'n, 640 F.3d 1263, 1268 (D.C.Cir.2011)). The Third Circuit has not yet addressed the question of whether such deference is “only appropriate when the agency has exercised its own judgment, not when it believes that [its] interpretation is compelled by Congress.” Thompson, 281 F.3d at 254 (internal quotation marks and citations omitted) (emphasis in original). ⁴ For the reasons set forth below, however, we find Section 212(h)'s statutory language free of ambiguity—though not in the manner Martinez champions—and thus we need not accord Chevron deference.

III. Analysis

A. Statutory Language

Section 212(h) provides one of the few avenues of relief for non-citizens who would otherwise be eligible to adjust their immigration status but for certain grounds of inadmissibility, such as moral turpitude. In 1996, however, as part of a larger immigration reform initiative, Congress amended the statute to render fewer LPRs eligible for the Section 212(h) waiver on aggravated felonies. See Illegal Immigration Reform and Immigrant...