Rotimi v. Gonzales

• Decision Date: 03 January 2007
• Docket Number: Docket No. 06-0202-AG.
• Citation: 473 F.3d 55
• Parties: Felix ROTIMI, Petitioner, v. Alberto GONZALES, as Attorney General of the United States, Department of Homeland Security, Michael Chertoff, Secretary, Department of Homeland Security, District Director, New York District, Immigration and Customs Enforcement, Respondents.
• Court: U.S. Court of Appeals — Second Circuit

473 F.3d 55

Felix ROTIMI, Petitioner, v. Alberto GONZALES, as Attorney General of the United States, Department of Homeland Security, Michael Chertoff, Secretary, Department of Homeland Security, District Director, New York District, Immigration and Customs Enforcement, Respondents.

Docket No. 06-0202-AG.

United States Court of Appeals, Second Circuit.

Argued: December 11, 2006.

Decided: January 3, 2007.

Daniel Shabasson, Pollack, Pollack, Isaac & DeCicco, New York, NY, for Petitioner.

Dione M. Enea, Special Assistant United States Attorney, of counsel (Scott Dunn, Assistant United States Attorney, on the brief), for Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Respondents.

Before FEINBERG, MESKILL, KATZMANN, Circuit Judges.

PER CURIAM.

At issue in this case is the construction of INA § 212(h), 8 U.S.C. § 1182(h), which requires that to be eligible for a waiver of removal, a Lawful Permanent Resident ("LPR") must have "lawfully resided continuously" in the United States for seven years before the initiation of deportation proceedings. Petitioner Felix Rotimi was denied such relief because the BIA—in a single-member nonprecedential decision—found that, as a matter of law, his period of residence as an asylum seeker was not "lawful." Because we hold that a nonprecedential decision by a single member of the BIA should not be accorded Chevron deference, see Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), we remand petitioner's case to provide the BIA with the opportunity to construe the "lawfully resided continuously" provisions of § 212(h) in a precedential opinion. We vacate the BIA's decision and remand.

BACKGROUND

The facts of this case are undisputed. Felix Rotimi entered the United States on June 7, 1995. He was first admitted with a visitor visa, which allows for a six month stay. In September 1995, before his visa expired, Rotimi applied for political asylum. The asylum office denied his application and began removal proceedings (then called deportation proceedings) on May 17, 1996. Petitioner was referred to an IJ and his hearing was continued. On July 12, 1996, Rotimi married a United States citizen and, shortly thereafter, filed an application for adjustment of status under INA § 245, 8 U.S.C. § 1255. His wife's petition for an immigrant visa on his behalf was approved in November 1996; on August 13, 1997, his adjustment application was granted and Rotimi became an LPR. Before his adjustment application was granted, on March 20, 1997, petitioner withdrew his application for political asylum.

On May 22, 2002, petitioner was convicted of attempted criminal possession of a forged instrument in the second degree, in violation of the New York Penal Law, for a crime he committed in January 2002. He was sentenced to a five-year period of probation. In November 2002, petitioner returned from a brief trip abroad; at John F. Kennedy airport in New York he sought admission as a returning LPR. However, because his conviction was for a crime of moral turpitude, his inspection was "deferred." On June 9, 2003, the INS charged him with being inadmissible and initiated removal proceedings by serving him with a Notice to Appear ("NTA"). This was just over seven years after the date of Rotimi's initial admission in 1996.

During the removal proceedings, petitioner conceded that he was removable and applied for a waiver pursuant to INA § 212(h), 8 USC § 1182(h) (hereinafter a "212(h) waiver"), based on the extreme hardship to his United States citizen wife if he were deported. A § 212(h) waiver requires the immigrant to have "lawfully resided continuously" in the United States for seven years before initiation of removal proceedings. Rotimi argued that he was eligible for § 212(h) relief because between 1996 and 2003 he had been lawfully in the United States as either a visitor, asylum seeker, adjustment applicant, or LPR. The IJ disagreed and held that "filing an application for asylum in 1995 did not exten[d Rotimi's] non-immigrant stay in the United States nor did it confer on the respondent any lawfulness in his continued residence in the United States." Because the IJ found that petitioner did not meet the statutory requirements, she did not consider whether petitioner warranted § 212(h) relief in the exercise of her discretion.

The BIA, in a nonprecedential decision by a single member, denied petitioner's appeal for the reasons stated by the IJ. The decision defined a "period of lawful residence" as "one in which the alien has affirmatively been accorded the right or privilege of residing here and abides by the rules associated with that right or privilege," without providing a source for this definition. It stated, without explanation, that "[a]lthough the respondent submitted an asylum application prior to the expiration of his authorized status, that act did not make the respondent's continued residence in this country `lawful' in any legal sense. That act merely limited the period that may be counted in determining the respondent's period of `unlawful presence.'"

Petitioner brings this appeal and argues that: (1) the BIA erred in holding that he had not "lawfully resided continuously" in the United States for seven years as required by § 212(h) and (2) the BIA violated its own regulations by allowing a single BIA member to issue an opinion interpreting a novel legal issue.

DISCUSSION

It is undisputed that petitioner had lived in the United States for over seven years before the NTA was issued. The relevant question is whether the entirety of this period should constitute time that he "lawfully resided continuously" as required for a § 212(h) waiver.

I. Standard of Review

As the meaning of "lawfully resided continuously" is not self-evident, we would ordinarily proceed to a full Chevron analysis. However, the Supreme Court has held that an "administrative implementation of a particular statutory provision qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority." United States v. Mead Corp., 533 U.S. 218, 226-27, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001). Because there is no indication that the BIA's nonprecedential single-member decision was "promulgated" under its authority to "make rules carrying the force of law," id., we do not accord it Chevron deference.

We considered a related question in Shi Liang Lin v. United States Department of Justice, 416 F.3d 184, 187 (2d Cir.2005), and we held that an IJ's interpretation of an INA provision, summarily affirmed by the BIA, was not entitled to C...