Poveda v. U.S. Attorney Gen.

• Decision Date: 27 August 2012
• Docket Number: No. 11–14512.,11–14512.
• Parties: Sammir A. POVEDA, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

692 F.3d 1168

23 Fla. L. Weekly Fed. C 1477

Sammir A. POVEDA, Petitioner,

v.U.S. ATTORNEY GENERAL, Respondent.

No. 11–14512.

United States Court of Appeals,Eleventh Circuit.

Aug. 27, 2012.

Juan Carlos Gomez, Pozo, Goldstein & Gomez, LLP, Miami, FL, for Petitioner.

Lauren Fascett, Sheri Robyn Glaser, David V. Bernal, Krystal Samuels, U.S. Dept. of Justice, OIL, Washington, DC, Michelle Ressler, Dist. Counsel's Office, Miami, FL, for Respondent.

Petition for Review of a Decision of the Board of Immigration Appeals.

Before WILSON, PRYOR and MARTIN, Circuit Judges.

PRYOR, Circuit Judge:

The main question presented by this petition for review is whether a removable alien is eligible for a waiver of inadmissability, under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h), if he remains within the United States, but fails to apply for an adjustment of his status, 8 U.S.C. § 1255. Sammir Poveda, a lawful permanent resident, petitions for review of a decision of the Board of Immigration Appeals that vacated an immigration judge's decision that Poveda is eligible for a hardship waiver under section 212(h). The immigration judge had determined that Poveda is eligible for a hardship waiver based on a misreading of our decisions in Lanier v. United States Attorney General, 631 F.3d 1363 (11th Cir.2011), and Yeung v. INS, 76 F.3d 337 (11th Cir.1995). Poveda argues that, as an alien lawfully present in the United States, he need not concurrently apply for an adjustment of his status, but we must defer to the contrary interpretation of section 212(h) by the Board. See8 U.S.C. § 1182(h); 8 C.F.R. § 1245.1(f). And we reject Poveda's argument that the interpretation by the Board would violate his right to equal protection as a component of due process of law, U.S. Const. Amend. V. Poveda's alternative argument that he qualifies as an inadmissable alien, 8 U.S.C. § 1101(a)(13), eligible for a hardship waiver under section 212(h) also fails. We deny Poveda's petition for review.

I. BACKGROUND

Sammir Poveda is a native and citizen of Nicaragua. After his admittance into the United States, Poveda adjusted his status in 2002 to that of an alien lawfully admitted for permanent residence under the Nicaraguan Adjustment and Central American Relief Act of 1997, Pub. L. No. 105–100, 111 Stat. 2160, 2193 (1997). In 2007, a Florida court convicted Poveda of the offense of battery on a child by bodily fluids, seeFla. Stat. Ann. § 784.085(1), and soon afterward, the Department of Homeland Security commenced removal proceedings against him, see8 U.S.C. §§ 1227(a)(2)(A)(i), 1227(a)(2)(A)(iii), 1227(a)(2)(E)(i).

Poveda applied for a hardship waiver of removal under section 212(h). An immigration judge determined that Poveda was removable, but granted Poveda's application for a waiver under section 212(h) by interpreting our decisions in Lanier and Yeung to mean that an alien is eligible for a hardship waiver regardless of whether the alien has concurrently applied for an adjustment of status. The government appealed that decision to the Board of Immigration Appeals.

The Board vacated the immigration judge's decision, based on the decisions of two of our sister circuits, see Cabral v. Holder, 632 F.3d 886 (5th Cir.2011); Klementanovsky v. Gonzales, 501 F.3d 788 (7th Cir.2007), that an alien must “submit an application for a 212(h) waiver concurrently with an application for a visa, admission, or adjustment of status.” The Board also concluded that the immigration judge had misread our precedents. The Board reasoned that Lanier stood “for the proposition that an alien who adjusted to lawful permanent resident status is not necessarily barred from seeking a waiver under section 212(h) ... as a result of having been convicted of an aggravated felony,” and that the reference to Yeung in Lanier was intended to explain only “that a 212(h) waiver may be granted by an Immigration Judge in removal proceedings as opposed to being a form of relief restricted to aliens seeking physical entry into the United States.” Because it concluded that Poveda was ineligible for the hardship waiver, the Board ordered the removal of Poveda to Nicaragua.

II. STANDARDS OF REVIEW

“This Court reviews only the decision of the [Board], except to the extent that it expressly adopts the [immigration judge's] opinion.” Nreka v. U.S. Att'y Gen., 408 F.3d 1361, 1368 (11th Cir.2005) (internal quotation marks omitted). “To the extent that the [Board's] ... decision was based on a legal determination, review is de novo.” Id. Although we lack jurisdiction “to review a decision of the Attorney General to grant or deny a waiver,” 8 U.S.C. § 1182(h), “[w]e have jurisdiction to review the legal question of whether [Poveda] is statutorily eligible to apply for a § 212(h) waiver.” Lanier, 631 F.3d at 1365 n. 2. And, we have jurisdiction to consider constitutional challenges to the interpretation by the Board of the statute it administers. See8 U.S.C. § 1252(a)(2)(D). Although “[w]e review the [Board's] statutory interpretation de novo,” we “will defer to the [Board's] interpretation of a statute if it is reasonable and does not contradict the clear intent of Congress.” Jaggernauth v. U.S. Att'y Gen., 432 F.3d 1346, 1350 (11th Cir.2005). “[J]udicial deference to the Executive Branch is especially appropriate in the immigration context.” INS v. Aguirre–Aguirre, 526 U.S. 415, 425, 119 S.Ct. 1439, 1445, 143 L.Ed.2d 590 (1999). “We review constitutional challenges ... de novo,” Lapaix v. U.S. Att'y Gen., 605 F.3d 1138, 1143 (11th Cir.2010), and “federal classifications such as those at issue in § 212 of the [Act] are subject to minimal scrutiny under the rational basis standard of review, and are valid if not arbitrary or unreasonable.” Yeung, 76 F.3d at 339. “Under the rational basis standard, the [alien] bears the burden of establishing that the government regulation is arbitrary or unreasonable, and not rationally related to the government's purpose.” Id.

III. DISCUSSION

We divide our discussion in two parts. First, we discuss whether Poveda, as an alien within our borders, is eligible for a hardship waiver without concurrently applying for an adjustment of his status. Second, we discuss whether Poveda is an applicant for admission.

A. As an Alien Within Our Borders, Poveda is Ineligible for a Hardship Waiver Unless He Applies for an Adjustment of His Status.

“Section 212(h)(1)(B) of the [Act] gives the Attorney General the discretion to waive the immigration consequences of certain criminal convictions if a person demonstrates that [his or] her removal or denial of admission would result in extreme hardship to a U.S. citizen family member.” Lanier, 631 F.3d at 1365. On its face, the waiver is available only to aliens charged with inadmissibility in removal proceedings and only when the Attorney General has agreed to grant an alien's application for a visa, for admission, or for an adjustment of status:

The Attorney General may, in his discretion, waive the application of [certain grounds of inadmissibility] ... if ... the Attorney General, in his discretion, and pursuant to such terms ... as he may by regulations prescribe, has consented to the alien's applying or reapplying for a visa, for admission to the United States, or adjustment of status.

8 U.S.C. § 1182(h).

Although section 212(h) mentions no grounds of deportability and, on its face, applies only to aliens charged with inadmissibility, the Board earlier took the position that a lawful permanent resident present in the United States could apply for a waiver under section 212(h) during deportation proceedings so long as he “depart[ed], return[ed], and then appl[ied] for a waiver.” Klementanovsky, 501 F.3d at 793.See, e.g., Matter of Sanchez, 17 I. & N. Dec. 218, 222–24 (BIA 1980). In Yeung, we ruled that the position of the Board that an alien is ineligible for the waiver “simply by virtue of his failure to depart and reenter” was “to recognize a distinction that can only be characterized as arbitrary, and that is without a fair and substantial relation to the object of the legislation.” Yeung, 76 F.3d at 340 (internal quotation marks omitted). We remanded that matter to the Board to “afford the Attorney General, in whom Congress has vested the authority to rule on legal questions arising from the immigration law, the opportunity to reconsider and construe § 212(h) consistent with the competing statutory, constitutional, and policy interests at stake.” Id. at 341.

In the wake of Yeung, the Board has “abandoned” its previous position. Klementanovsky, 501 F.3d at 794. The Board now interprets section 212(h) to provide that the Attorney General may grant a waiver in two situations: first, the Attorney General may provide a waiver to an alien at the border who seeks admission, including an alien who has departed the United States after committing a deportable offense, so long as the alien remains outside our borders while applying for relief; and second, the Attorney General may provide a waiver to an alien within our borders after his conviction for a deportable offense so long as he applies for an adjustment of status. Cf. Matter of Abosi, 24 I. & N. Dec. 204, 205 (BIA 2007). And federal regulations provide that, for aliens who apply for a hardship waiver while within the United States, an application for an adjustment of status “shall be the sole method of requesting the exercise of discretion under section 212 ... (h)....” 8 C.F.R. § 1245.1(f). See Abosi, 24 I. & N. Dec. at 205 n. 2 (interpreting the regulation and distinguishing aliens seeking admission, who need not apply for an adjustment of status in conjunction with a request for a waiver under section 212(h), and aliens in the United States who must apply for status adjustment).

Poveda argues that he is statutorily eligible for a waiver. He contends that our decisions in Lanier and Yeung foreclose the current position of the Board that an ...