Stanovsek v. Holder
| Decision Date | 24 September 2014 |
| Docket Number | No. 13–3279.,13–3279. |
| Citation | 768 F.3d 515 |
| Parties | Robert Michael STANOVSEK, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
OPINION TEXT STARTS HERE
ARGUED:Thomas E. Moseley, Law Offices of Thomas E. Moseley, Newark, NJ, for Petitioner. Kelly J. Walls, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF:Thomas E. Moseley, Law Offices of Thomas E. Moseley, Newark, NJ, for Petitioner. Janice K. Redfern, United States Department of Justice, Washington, D.C., for Respondent. Mary Kenney, Beth Werlin, American Immigration Council, Washington, D.C., for Amicus Curiae.
Before: BOGGS and ROGERS, Circuit Judges; STEEH, District Judge. *
ROGERS, J., delivered the opinion of the court, in which STEEH, D.J., joined. BOGGS, J. (pp. 521–24), delivered a separate dissenting opinion.
This case raises the issue of whether an alien who has adjusted his status to that of a lawful permanent resident after being admitted to the United States on a nonimmigrant visa, and who is later subject to removal for committing an aggravated felony, may seek a hardship waiver. A provision of the Immigration and Nationality Act (“the Act”) bars such a hardship waiver for an alien admitted to the United States in the first place as an immigrant, but the bar cannot be read to extend to aliens who were lawfully admitted first as nonimmigrants and who later adjusted to immigrant status. The basis for such a distinction is very hard to see, and the Attorney General accordingly argues that the bar applies in both instances. The inescapably clear language of the statute, however, requires the conclusion that the bar does not extend to the latter situation. The decision of the Board of Immigration Appeals relying on the bar therefore cannot stand in this case.
Petitioner Stanovsek, a citizen of Australia, was admitted on a nonimmigrant visitor visa in 1990 and later adjusted status to lawful permanent resident by virtue of his marriage to a United States citizen. In September 2009, Stanovsek was convicted for the offense of aggravated theft, in violation of Ohio Rev.Code § 2913.02(A)(1), and was sentenced to three years of imprisonment. Stanovsek's crime constituted an aggravated felony under § 101(a)(43)(G) of the Act, 8 U.S.C. § 1101(a)(43)(G), which defines an aggravated felony to include theft offenses for which the term of imprisonment is at least one year. Consequently, the Department of Homeland Security charged Stanovsek with removability under 8 U.S.C. § 1227(a)(2)(A)(iii), as a noncitizen convicted of an aggravated felony after his admission to the United States.
At the removal hearing, Stanovsek conceded the charge of removability, but requested an adjustment of status and a waiver from removal under § 212(h), which applies when removal would impose “extreme hardship” on the alien's United States citizen spouse, parent, or child. 8 U.S.C. § 1182(h). The Immigration Judge determined that Stanovsek was ineligible for a § 212(h) waiver under the BIA precedentof Matter of Rodriguez, because he was convicted of an aggravated felony after adjusting status, and the BIA affirmed the Immigration Judge's decision on that ground. The BIA relied on the Act's provision that:
No 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.
8 U.S.C. § 1182(h). The BIA in Rodriguez had interpreted this language to mean that “212(h) relief is unavailable to any alien who has been convicted of an aggravated felony after acquiring lawful permanent resident status,” except in jurisdictions where controlling circuit law forbade it from doing so. Rodriguez, 25 I. & N. Dec. 784, 789 (BIA 2012).
The statutory language however is clear and unambiguous that a § 212(h) waiver is precluded after a conviction of an aggravated felony only when the removable person had attained the status of lawful permanent resident at the time of his or her lawful entry into the United States. See8 U.S.C. § 1182(h). The Immigration and Nationality Act defines “admitted” and “admission” to mean “with respect to an alien, 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). “[The § 212(h) language] therefore encompasses the action of an entry into the United States, accompanied by an inspection or authorization.” Papazoglou v. Holder, 725 F.3d 790, 793 (7th Cir.2013). In addition, “lawfully admitted for permanent residence,” is statutorily defined as “the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant.” 8 U.S.C. § 1101(a)(20); see also Papazoglou, 725 F.3d at 793. “This term encompasses all [lawful permanent residents], regardless of whether they obtained that status prior to or at the time they physically entered the United States or by adjusting their status while already living in the United States.” Negrete–Ramirez v. Holder, 741 F.3d 1047, 1053 (9th Cir.2014). Thus the statutory language with the statutory definitions substituted is as follows:
No waiver shall be granted under this subsection in the case of an alien who has previously [entered into the United States after inspection and authorization by an immigration officer] as an alien [with the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant] if ... since the date of such admission the alien has been convicted of an aggravated felony.
This language cannot be stretched to bar an alien who did not enter as an alien with immigrant status, but who lawfully entered as a non-immigrant and later adjusted status. Not only does the language clearly not say that, but also such a result could quite easily have been obtained by saying something much simpler, such as:
No waiver shall be granted under this subsection in the case of a lawful permanent resident if ... since the date of obtaining such status the alien has been convicted of an aggravated felony.
This conclusion comports with holdings in the Third, Fourth, Fifth, Seventh, Ninth, and Eleventh Circuits that “the text [of 8 U.S.C. § 1182(h) ] is unambiguous and ... 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.” Negrete–Ramirez, 741 F.3d at 1050; see also Papazoglou, 725 F.3d at 792–94; Leiba v. Holder, 699 F.3d 346, 348–56 (4th Cir.2012); Hanif v. Attorney Gen., 694 F.3d 479, 483–87 (3d Cir.2012); Bracamontes v. Holder, 675 F.3d 380, 382, 384–89 (4th Cir.2012); Lanier v. U.S. Attorney Gen., 631 F.3d 1363, 1365–67 (11th Cir.2011); Martinez v. Mukasey, 519 F.3d 532, 541–46 (5th Cir.2008).
Although not on all fours, our decision in Zhang v. Mukasey, 509 F.3d 313 (6th Cir.2007), also supports this conclusion. In that case we addressed the meaning of “admission” in the context of removal under § 237(a)(2)(A)(i) of the Act, 8 U.S.C. § 1227(a)(2)(A)(i), for committing a crime of moral turpitude within five years of an alien's “date of admission.” We held that an adjustment of status to lawful permanent resident did not constitute an “admission” for purposes of 8 U.S.C. § 1227(a)(2)(A)(i). 509 F.3d at 314, 316. We relied on the “unambiguous” definition of the term “admitted” set forth in 8 U.S.C. § 1101(a)(13)(A) to conclude that “there is only one ‘first lawful admission,’ and it is based on physical, legal entry into the United States.” Id. at 316. Therefore, date of “admission” is the date of the alien's lawful entry. Id.
Moreover, this court in Zhang distinguished Matter of Rosas–Ramirez, 22 I. & N. Dec. 616 (BIA 1999), a case on which the Attorney General here relies, by explaining that, for an alien who had entered the United States illegally, as was the case in Rosas, an adjustment of status is an “admission” because an adjustment of status is the first point at which such an individual is lawfully in the United States. Zhang, 509 F.3d at 316. Thus a post-entry adjustment of status differs in its significance between individuals who had previously entered the U.S. legally, and those who had first entered the United States illegally and are only lawfully in the United Status after completing an adjustment of status. This distinction undermines the Attorney General's “adjustment-as-admission” argument, which relies heavily on BIA precedent involving aliens who were adjusted to lawful permanent resident status without a prior lawful admission to the U.S. See, e.g., Matter of Koljenovic, 25 I. & N. Dec. 219 (BIA 2010); Rosas–Ramirez, 22 I. & N. Dec. 616 (BIA 1999); Matter of Rodarte–Roman, 23 I. & N. Dec. 905 (BIA 2006); Rodriguez, 25 I. & N. Dec. 784 (BIA 2012).
While the principles of 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), would apply to the BIA's interpretation of the statutory provision in question, that only makes a difference if the provision is ambiguous. That is not the case here, for the reasons already given. If “Congress has directly spoken to the precise question at issue” such that “the intent of Congress is clear, that is the end of the matter; for the court ... must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842–43, 104 S.Ct. 2778.
Ruling to the contrary, the Eighth Circuit has recently applied Chevron deference to uphold the BIA's construction of the statutory provision in question, by finding an ambiguity from the use of the words “admitted” and “admission” in other provisions of the Act. Roberts v. Holder, 745 F.3d...
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