Nastase v. Barr

• Citation: 964 F.3d 313
• Decision Date: 01 July 2020
• Docket Number: No. 18-60264,18-60264
• Parties: George Eduard NASTASE, Petitioner, v. William P. BARR, U. S. Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

964 F.3d 313

George Eduard NASTASE, Petitioner,

v.William P. BARR, U. S. Attorney General, Respondent.

No. 18-60264

United States Court of Appeals, Fifth Circuit.

FILED July 1, 2020

Brian Keith Bates, Esq., Reina & Bates Immigration & Nationality Lawyers, Houston, TX, for Petitioner.

Ashley Young Martin, Attorney, Office of Immigration Litigation, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.

Before ELROD, WILLETT, and OLDHAM, Circuit Judges.

JENNIFER WALKER ELROD, Circuit Judge:

Romanian native George Eduard Nastase petitions for review of the Board of Immigration Appeals (BIA) decisions denying his applications for adjustment of immigration status and for a waiver of inadmissibility. The first petition is DENIED and the second petition is DENIED in part and DISMISSED in part for lack of jurisdiction.

I.

Nastase was born in 1985 in Romania. In 1986, he was admitted to the United States as a refugee in the care of his parents. After his parents divorced eight years later, Nastase lived with his mother and siblings. In 1999, his mother became a naturalized citizen.

In 2006, Nastase applied for adjustment of his immigration status under 8 U.S.C. § 1159(a), which (if granted) would cause him to "be regarded as lawfully admitted to the United States for permanent residence as of the date of [his] arrival into the United States." That application was denied in 2012 on the basis that Nastase's criminal record rendered him inadmissible. Specifically, the United States Citizenship and Immigration Services (USCIS) reasoned that his 2007 conviction for delivery of a simulated controlled substance made him ineligible for adjustment of status under 8 U.S.C. § 1182(a)(2)(C)(i), which states that "[a]ny alien who ... the Attorney General knows or has reason to believe ... is or has been an illicit trafficker in any controlled substance ... is inadmissible." Nastase committed miscellaneous other crimes in 2012 and the years following: theft, credit card abuse, and criminal trespass—all misdemeanors—and felony possession of less than one gram of a controlled substance (methamphetamine).

Those crimes landed Nastase in the Dallas County Jail in 2012, where he was identified by Department of Homeland Security ("DHS") agents. DHS then instigated removal proceedings against him. Because Nastase was not in federal custody at the time, the Immigration Judge (IJ) administratively closed the proceedings.

When the removal proceedings restarted in 2017, DHS alleged two bases of removability: (1) that Nastase had been "convicted of two or more crimes involving moral turpitude" under 8 U.S.C. § 1227(a)(2)(A)(ii), and (2) that he had been convicted of a crime "relating to a controlled substance" under § 1227(a)(2)(B)(i). Nastase defended the charges by arguing that he had gained derivative United States citizenship when his mother became a citizen. See 8 U.S.C. § 1431(a). As all this was taking place, Nastase again applied for an adjustment of status under § 1159(a). This time, mindful of the denial of his first application on inadmissibility grounds, he also applied for a discretionary waiver of inadmissibility under § 1159(c).

The IJ rejected Nastase's citizenship argument, concluding that his admission as a refugee did not meet the derivative citizenship statute's requirement of "lawful admission for permanent residence." 8 U.S.C. § 1431(a)(3). The IJ also determined that Nastase was inadmissible under § 1182(a)(2)(A)(i)(II) and denied him a waiver after weighing a variety of equitable factors and finding that they ultimately weighed against him. Given Nastase's inadmissibility, the IJ denied his application for an adjustment of status.

Nastase appealed these determinations to the BIA, which dismissed the appeal on essentially the same reasoning provided by the IJ. Nastase proceeded to file a petition for review of the BIA's citizenship decision in this court, while simultaneously pursuing a motion for reconsideration of the waiver decision at the BIA. When the BIA denied the motion, Nastase filed an additional petition for review of that denial.

The petitions were consolidated. See 8 U.S.C. § 1252(b)(6). We take them in turn.

II.

In his first petition for review, Nastase argues that he is not removable because his childhood admission as a refugee was a "lawful admission for permanent residence" and he thereby received derivative United States citizenship when his mother became a citizen in 1999. We disagree.

A.

We have jurisdiction to review Nastase's citizenship claim under § 1252(b)(5)(A). See also 8 U.S.C. § 1252(a)(1) (jurisdiction over removal orders). The question of whether refugee status equates to "lawful admission for permanent residence" ("LPR") status under the derivative citizenship statute is a legal one that the court reviews de novo. See Bustamante-Barrera v. Gonzales , 447 F.3d 388, 393 (5th Cir. 2006).

LPR status is "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." 8 U.S.C. § 1101(a)(20). The derivative citizenship statute bestows citizenship on foreign-born children who meet three requirements:

(1) At least one parent of the child is a citizen of the United States, whether by birth or naturalization. (2) The child is under the age of eighteen years. (3) The child is residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence .

8 U.S.C. § 1431(a) (emphasis added). Nastase "has the burden of proving that he qualifies for naturalization, and he must do so in the face of the Supreme Court's mandate that we resolve all doubts ‘in favor of the United States and against’ those seeking citizenship." Bustamante-Barrera , 447 F.3d at 394–95 (quoting Berenyi v. Dist. Dir., I.N.S. , 385 U.S. 630, 637, 87 S.Ct. 666, 17 L.Ed.2d 656 (1967) ); see also I.N.S. v. Pangilinan , 486 U.S. 875, 884, 108 S.Ct. 2210, 100 L.Ed.2d 882 (1988) (courts considering naturalization claims must ensure "strict compliance with the terms of an authorizing statute").

The Fifth Circuit has not decided whether Chevron deference applies to the BIA's interpretation of the derivative citizenship statute. See Bustamante-Barrera , 447 F.3d at 393–94 (declining to decide whether Chevron deference applies to § 1432, the now-repealed precursor to § 1431 ). However, the Fifth Circuit has concluded that Chevron deference never applies to non-precedential BIA decisions. See Dhuka v. Holder , 716 F.3d 149, 154–56 (5th Cir. 2013). The BIA's decision in this case has not been designated as precedential. A non-precedential BIA decision is given whatever weight is appropriate based on "the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade." Skidmore v. Swift & Co. , 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944) ; see Dhuka , 716 F.3d at 156. In any event, this case does not turn on Chevron deference because our disposition would be the same whether we applied it or not.

B.

To have met the requirements for derivative citizenship in 1999, as he claims, Nastase must have then been "residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence ." ¹

8 U.S.C. § 1431(a)(3) (emphasis added). He was not.

Nastase admits that no court in any jurisdiction has ever construed refugee status to include LPR status, and that the admission of refugees has traditionally been termed "conditional." Oral Argument at 8:58; see also In re D-K- , 25 I. & N. Dec. 761, 767–68 (B.I.A. 2012) (discussing "the conditional nature of a refugee's status" and noting that "refugee admission is impermanent and subject to contingencies"). Nevertheless, he argues that his status as a refugee made him a permanent resident in the sense that he could reside in the United States "indefinite[ly] unless and until terminated." Thus, he says, all refugees meet the statutory definition of "permanent": "The term ‘permanent’ means a relationship of continuing or lasting nature, as distinguished from temporary, but a relationship may be permanent even though it is one that may be dissolved eventually at the instance either of the United States or of the individual, in accordance with law." 8 U.S.C. § 1101(a)(31).

This contention is unpersuasive. Even assuming arguendo that Nastase's construal of these definitional statutes "is not inconsistent with the language of th[e] provision[s] examined in isolation, statutory language cannot be construed in a vacuum." Davis v. Mich. Dep't of Treasury , 489 U.S. 803, 809, 109 S.Ct. 1500, 103 L.Ed.2d 891 (1989). Indeed, "[i]t is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme." Id.

As the Attorney General points out, the rest of the statutory scheme evinces a clear distinction between refugee status and LPR status. Section 1159(a)(1)(C), for instance, discusses "alien[s] who ha[ve] been admitted to the United States" as refugees "who ha[ve] not acquired permanent resident status," a category of persons that would not exist if refugees were already LPRs. In fact, that section requires refugees "to apply for adjustment to LPR status after being present in the United States for one year" if they have not already acquired LPR status. Ali v. Lynch , 814 F.3d 306, 313 (5th Cir. 2016). Nastase's interpretation would render this provision meaningless, violating the "principle that when interpreting a statute, it is necessary to give meaning to all its words and to render none superfluous." United States v. Rayo-Valdez , 302 F.3d 314, 318 (5th Cir. 2002). Section 1159(a) is not the only provision...