Negrete-Ramirez v. Holder

• Decision Date: 21 January 2014
• Docket Number: No. 10–71322.,10–71322.
• Citation: 741 F.3d 1047
• Parties: Juana NEGRETE–RAMIREZ, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

741 F.3d 1047

Juana NEGRETE–RAMIREZ, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 10–71322.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 9, 2011.

Filed Jan. 21, 2014.

Michael K. Mehr (argued) and Rachael E. Keast, Santa Cruz, California, for Petitioner.

Laura Halliday Hickein (argued) and Nancy Canter, Washington, D.C., for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A079–355–559.

Before: DIARMUID F. O'SCANNLAIN, ROBERT E. COWEN,^* and MARSHA S. BERZON, Circuit Judges.

OPINION

COWEN, Circuit Judge:

Juana Negrete–Ramirez petitions for review of the Board of Immigration Appeal's (“BIA”) order dismissing her appeal. Negrete–Ramirez contends that the BIA erred in determining that the statutory language of the Immigration and Nationality Act (“INA”) excludes her from eligibility to apply for an inadmissibility waiver under Section 212(h) of the INA, 8 U.S.C. § 1182(h) ( “ § 212(h) waiver”). In reaching its conclusion, the BIA misinterpreted the plain language of INA § 212(h) and Ninth Circuit precedent. A de novo review of the statutory text, as well as the precedent of this Court and our sister Circuits, leads to the conclusion that Negrete–Ramirez is eligible to be considered for the § 212(h) waiver. See Papazoglou v. Holder, 725 F.3d 790, 792–94 (7th Cir.2013); Leiba v. Holder, 699 F.3d 346, 348–56 (4th Cir.2012); Hanif v. Attorney General, 694 F.3d 479, 483–87 (3d Cir.2012); Martinez v. Attorney General, 693 F.3d 408, 411–16 (3d Cir.2012); Bracamontes v. Holder, 675 F.3d 380, 384–89 (4th Cir.2012); Lanier v. Attorney General, 631 F.3d 1363, 1365–67 (11th Cir.2011); Martinez v. Mukasey, 519 F.3d 532, 541–46 (5th Cir.2008). We grant the petition for review and remand to the BIA with instructions to remand to the Immigration Judge (“IJ”) so that Negrete–Ramirez may seek a § 212(h) waiver.

I.

Negrete–Ramirez was admitted into the United States, as defined by 8 U.S.C. 1101(a)(13), in April 1996 on a B2 visitor visa. She subsequently adjusted her status to that of a lawful permanent resident (“LPR”). Four years later, Negrete–Ramirez pleaded nolo contendre to two counts of committing a lewd act upon a child in violation of Section 288(a) of the California Penal Code. In January 2009, she was returning from abroad and was paroled ¹ into the United States by the Bureau of Border and Customs Protection. Removal proceedings were initiated against her after she was served with a Notice to Appear. In the Notice to Appear, the Department of Homeland Security charged her with being inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(I), as an alien convicted of a crime involving moral turpitude.

At the removal hearing, the IJ found Negrete–Ramirez removable as charged. When she informed the IJ that she would apply for relief in the form of cancellation of removal under 8 U.S.C. § 1229b, the IJ held that her conviction was for an aggravated felony, and she was ineligible for cancellation of removal. Negrete–Ramirez appealed this decision to the BIA, but the record could not be located and the case was remanded to develop a new record.

On remand, Negrete–Ramirez made a motion to the IJ to calendar proceedings to allow her to apply for a § 212(h) waiver. A § 212(h) waiver is granted at the discretion of the Attorney General to aliens whose inadmissibility is based on certain criteria. The IJ calendared a hearing for her § 212(h) waiver application. At the hearing, the IJ determined that she was not eligible to apply for the § 212(h) waiver because of her aggravated felony conviction following her adjustment of status to an LPR. Matter of Juana Negrete Ramirez, A79 355 559 (Oct. 22, 2009). Negrete–Ramirez appealed the decision to the BIA. The BIA found her ineligible to apply for the § 212(h) waiver due to her aggravated felony because she was “ ‘admitted’ to the United States when she adjusted her status in 2002” and affirmed the IJ's order. Matter of Juana Negrete–Ramirez, A079 355 559 (BIA Apr. 21, 2010).

II.

The issue before us is whether a noncitizen, who is admitted to the United States on a visitor visa and later adjusts her status to a lawfully admitted permanent resident without leaving the United States, qualifies under 8 U.S.C. § 1182(h) as “an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence,” and, therefore, is ineligible to apply for a § 212(h) waiver.

We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to review the legal question of whether Negrete–Ramirez is statutorily eligible to apply for a § 212(h) waiver. De novo review of a statutory construction begins with the text of the statute. See, e.g., Hing Sum v. Holder, 602 F.3d 1092, 1095 (9th Cir.2010). “In the context of an unambiguous statute, we need not contemplate deferring to the agency's interpretation.” Barnhart v. Sigmon Coal Co., 534 U.S. 438, 462, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002) (citing Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842–43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)).

III.

If “Congress has directly spoken to the precise question at issue,” the Court “must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842–43, 104 S.Ct. 2778;Sum, 602 F.3d at 1095. Review of the relevant statutory text and “employ[ment of] traditional tools of statutory construction,” Chevron, 467 U.S. at 843 n. 9, 104 S.Ct. 2778, leads to the conclusion that the text is unambiguous and that the bar to seeking a § 212(h) waiver of inadmissibility does not apply to persons who adjusted to lawful permanent resident status after having entered into the United States by inspection. To date, our sister Circuits have—without exception—“held that § 212(h) precludes a waiver only for those persons who, at the time they lawfully entered into the United States, had attained the status of lawful permanent residents.” Papazoglou, 725 F.3d at 793 (citing Hanif, 694 F.3d at 487;Bracamontes, 675 F.3d at 386–87;Lanier, 631 F.3d at 1366–67;Martinez, 519 F.3d at 546). We ultimately agree with the Third, Fourth, Fifth, Seventh, and Eleventh Circuits.

The relevant text governing the § 212(h) waiver is as follows:

[n]o waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if [ ] since the date of such admission the alien has been convicted of an aggravated felony....

INA § 212(h), 8 U.S.C. § 1182(h) (emphasis added). As the Ninth Circuit observed in its analysis of this exact text, it “is divisible into two distinct phrases: namely, (1) ‘an alien who has previously been admitted to the United States' and (2) ‘as an alien lawfully admitted for permanent residence.’ ” Sum, 602 F.3d at 1095 (quoting 8 U.S.C. § 1182(h)).² The definitions section of the INA sets forth separate definitions for “admitted,” as used in the first phrase, 8 U.S.C. § 1101(a)(13), and “lawfully admitted for permanent residence,” id. § 1101(a)(20), as used in the second phrase. An analysis of the statutory language requires an assessment of the effect of these terms on the meaning of the provision as a whole. Resolving the issue before the Court turns primarily on whether “admitted” as understood in § 212(h) includes Negrete–Ramirez's post-entry adjustment of status.

1. 8 U.S.C. § 1101(a)(13)(A): “Admitted” and “Admission”

The statute defines “admitted” and “admission” as “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” 8 U.S.C. § 1101(a)(13)(A) (emphasis added). Applying the “ordinary, contemporary, common meaning” of this definition's terms reveals that it is limited and does not encompass a post-entry adjustment of status. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 388, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993); see also Papazoglou, 725 F.3d at 792–93;Leiba, 699 F.3d at 350–51;Hanif, 694 F.3d at 484–85;Bracamontes, 675 F.3d at 385–86;Lanier, 631 F.3d at 1366–67;Martinez, 519 F.3d at 543–44. The definition refers expressly to entry into the United States, denoting by its plain terms passage into the country from abroad at a port of entry.

The government urges the Court to adopt a definition of “admitted” that includes post-entry adjustment of status to an LPR. In support of its argument, the government cites three Ninth Circuit cases that interpret “admission” and “admitted” as used in specific sections of the INA to include adjustment of status. None of the cases involve a departure from the statute's plain language definition of “admitted” as used in § 212(h). And none of the cases involve statutory language that is divisible into two distinct phrases, each with its own term of art, like that in § 212(h).

The first case, Cuevas–Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir.2005), cannot be relied on as binding precedent for the principle that adjustment of status to an LPR is an “admission” because the issue was neither before the Court nor addressed by it. In Cuevas–Gaspar, the Court held that a parent's status may be imputed to their minor unemancipated child for purposes of cancellation of removal under 8 U.S.C. § 1229b(a). Id. at 1029. The Court's analysis was premised on the assumption that the petitioner would satisfy the cancellation of removal requirement of 7 years of continuous residence “after having been admitted in any status” if his mother's adjustment of status to LPR was imputed to him. Id. at 1021–29. The threshold issue of whether a post-entry adjustment of status to LPR is an “admi[ssion] in any status” was not mentioned by the Court. Accordingly, although Cuevas–Gaspar might imply a broader definition of “admitted” than that in 8 U.S.C. § 1101(a)(13), the Court did not hold that adjustment of status is an “admission” in any context, let alone the one...