Sunday v. Attorney Gen. U.S.

• Decision Date: 01 August 2016
• Docket Number: No. 15-1232,15-1232
• Citation: 832 F.3d 211
• Parties: Sina Sunday, Petitioner v. Attorney General United States of America, Respondent
• Court: U.S. Court of Appeals — Third Circuit

832 F.3d 211

Sina Sunday, Petitioner

v.Attorney General United States of America, Respondent

No. 15-1232

United States Court of Appeals, Third Circuit.

Argued: January 19, 2016

Filed: August 1, 2016

Keith E. Whitson, Esquire [ARGUED], Schnader Harrison Segal & Lewis LLP, 120 Fifth Avenue, Suite 2700, Pittsburgh, PA 15222, Counsel for Petitioner.

Benjamin C. Mizer, Esquire, Carl McIntyre, Esquire, Andrew Oliveira, Esquire [ARGUED], Sharon M. Clay, Esquire, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, P.O. Box 878 Ben Franklin Station, Washington, D.C. 20044, Counsel for Respondent.

Before: FISHER, CHAGARES, and BARRY, Circuit Judges.

OPINION

CHAGARES

, Circuit Judge.

Sina Sunday petitions for review of an order removing him from the United States. He unsuccessfully sought a “U visa” to avoid removal. The Board of Immigration Appeals (“BIA”) concluded that the immigration judge (“IJ”) lacked jurisdiction to consider Sunday's request for a waiver of inadmissibility regarding his U visa application. We agree with the BIA. Sunday also argues that his removal is unconstitutionally disproportionate punishment. Because the Supreme Court has consistently held that removal is not punishment, that argument lacks merit as well. We will deny the petition for review.

I.

Sunday is a native and citizen of Nigeria who was admitted to the United States in 1995 with permission to remain for a year. He overstayed and, in 2013, received a Notice to Appear charging him as removable for overstaying and for committing certain crimes. An IJ held Sunday was removable based on his overstaying and on a bail jumping conviction.

To avoid removal, Sunday applied for a U visa from the United States Citizenship and Immigration Service (“USCIS”) (part of the Department of Homeland Security (“DHS”)). But to obtain a visa, an applicant must be admissible, and Sunday was inadmissible because he lacked a valid passport and because of his bail jumping conviction. Sunday petitioned the USCIS for a waiver of inadmissibility, but the request was denied based on his criminal record. Sunday then applied for a waiver of inadmissibility from an IJ (IJs are part of the Department of Justice (“DOJ”)). An IJ determined that she lacked jurisdiction to consider Sunday's request for a waiver. Sunday also argued that his removal was an unconstitutionally disproportionate punishment, but another IJ (who inherited the case after the prior IJ retired) declined to consider that argument, reasoning that IJs should avoid considering “the possible unconstitutionality of the effect of the Immigration Act.” Appendix (“App.”) 35. Sunday was ordered removed by that IJ.

The BIA affirmed both determinations. As to the waiver of inadmissibility, the BIA reasoned that, per DHS regulation 8 C.F.R. § 103.2(a)(1)

, every benefit request made to DHS must follow the relevant form instructions. And “[t]he instructions for the Application for Advance Permission to Enter as Nonimmigrant (Form I-192) state ... that an applicant for U nonimmigrant status, if inadmissible, must file Form I-192 with the USCIS.” App. 21. Thus, the BIA concluded, waivers regarding U visas are exclusively within DHS's authority. The BIA added that it previously “held that a waiver of inadmissibility [by an IJ] cannot be granted in deportation, and by analogy, removal proceedings pursuant to [In _]Matter of Fueyo, 20 I. & N. Dec. 84 (BIA 1989).” App. 21. As to Sunday's argument regarding unconstitutional disproportionality, the BIA held that both it and the IJ lacked authority to rule on the issue. Id. Sunday timely petitioned for review.

II.

The BIA had jurisdiction to hear Sunday's appeal pursuant to 8 C.F.R. § 1003.1(b)

. We have jurisdiction over Sunday's petition pursuant to 8 U.S.C. § 1252(a). We review legal conclusions of the BIA de novo. Roye v. Attorney Gen. of U.S., 693 F.3d 333, 339 (3d Cir. 2012).

III.

The questions before us are (1) whether the IJ had jurisdiction to adjudicate Sunday's request for a waiver of inadmissibility and (2) whether Sunday's removal was unconstitutionally excessive punishment. The answer to both questions is no.

A.

U visas allow noncitizen victims of certain crimes who have suffered “substantial physical or mental abuse,” and who are likely to be helpful in investigating the crime, to remain in the United States as lawful temporary residents. 8 U.S.C. § 1101(a)(15)(U)

. The decision whether to grant a U visa is statutorily committed to DHS, and exercised through USCIS. Only 10,000 U visas are available annually. 8 U.S.C. § 1184(p)(2)(A).

A noncitizen who seeks a U visa, but who is inadmissible for any number of reasons, must obtain a waiver of inadmissibility in order to become eligible for the visa. 8 C.F.R. § 214.1(a)(3)(I)

. Sunday is inadmissible due to his lack of a valid passport and his bail jumping conviction. He seeks a waiver. It is undisputed that DHS has the authority to grant a waiver of inadmissibility for the purposes of a U visa application:

The Secretary of Homeland Security shall determine whether a ground of inadmissibility exists with respect to a nonimmigrant described in section 1101(a)(15)(U)

of this title. The Secretary of Homeland Security, in the Attorney General's discretion,¹ may waive the application of subsection (a) of this section [outlining grounds for inadmissibility] ... in the case of a nonimmigrant described in section 1101(a)(15)(U) of this title, if the Secretary of Homeland Security considers it to be in the public or national interest to do so.

8 U.S.C. § 1182(d)(14)

. Sunday sought a waiver from USCIS and was rejected.

There is also, however, a separate waiver provision in 8 U.S.C. § 1182(d)

, which concerns not DHS but the Attorney General:

[A]n alien ... who is inadmissible under subsection (a) of this section [outlining grounds for inadmissibility] ... but who is in possession of appropriate documents or is granted a waiver thereof and is seeking admission, may be admitted into the United States temporarily as a nonimmigrant in the discretion of the Attorney General. The Attorney General shall prescribe conditions, including exaction of such bonds as may be necessary, to control and regulate the admission and return of inadmissible aliens applying for temporary admission under this paragraph.

8 U.S.C. § 1182(d)(3)(A)(ii)

(often referred to, as we do below, by its corresponding designation in the Immigration and Nationality Act of 1952, Pub. L. No. 82–414, § 212, 66 Stat. 163, 187 (1952)).² Sunday claims that, under this provision, the Attorney General—and ultimately, through delegation, an IJ—has the authority to issue him a waiver of inadmissibility. We disagree.

Section 212(d)(3)(A)(ii) of the Immigration and Nationality Act gives the Attorney General the discretion to grant a waiver of inadmissibility to aliens who are “seeking admission.” “Admission” is defined 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)

. Accordingly, the phrase “and is seeking admission” unambiguously indicates that applications for waivers from the Attorney General are limited to those seeking lawful entry. By definition, that group does not include individuals who have already lawfully entered. See Zadvydas v. Davis, 533 U.S. 678, 693, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (“The distinction between an alien who has effected an entry into the United States and one who has never entered runs throughout immigration law.”). And the succeeding sentence, which gives the Attorney General “the power to set conditions on admission for those applying for entry,” also “demonstrates that the statute's drafters had in mind a waiver applicant who is not yet admitted.” Borrego v. Mukasey, 539 F.3d 689, 692 (7th Cir. 2008) (adopting this interpretation).

In addition to this statutory circumscription on the scope of § 212(d)(3)(A)(ii) waivers, IJs may only “exercise the powers and duties delegated to them ... by the Attorney General through regulation.” 8 C.F.R. § 1003.10(b)

. And, as outlined below, DOJ's immigration regulations restrict the IJ's § 212(d)(3)(A)(ii) waiver jurisdiction to instances where a waiver request was first made to a district director (who is part of DHS) prior to an individual's arrival in the United States.

All aliens who arrive at the United States must be inspected by immigration officers for admissibility. 8 U.S.C. §§ 1225(a)

, (b). Just as with a U visa applicant already in the United States, arriving aliens who are inadmissible must obtain a waiver. DOJ regulation 8 C.F.R. § 1212.4(b) describes the application process for the § 212(d)(3)(A)(ii) waiver provision at issue in this appeal. The regulation is entitled, “Applications for the exercise of discretion under section ... 212(d)(3),” and provides that an “application for the exercise of discretion under section 212(d)(3)(B)³ of the Act shall be submitted on Form I–192 to the district director [again, who is part of DHS] in charge of the applicant's intended port of entry prior to the applicant's arrival in the United States.” 8 C.F.R. § 1212.4(b)

(emphasis added). If an alien's admissibility is not clear, the district director also has the discretion under 8 C.F.R. § 1235.2 to defer inspection to a later date. This latter regulation, entitled, “Parole for deferred inspection,” provides that “[r]efusal of a district director ... to grant an application for the benefits of ... section 212(d)(3) or (4) of the Act, shall be without prejudice to the renewal of such application or the authorizing of such admission by the immigration judge without additional fee.” 8 C.F.R. § 1235.2(d). Together, these regulations indicate that IJs may only consider those § 212(d)(3)(A)(ii) waiver requests first made to a district director prior to arrival.

Sunday argues that DOJ regulation § 1235.2(d)

“in no way limits the authority of [IJs], nor does it even discuss the jurisdiction of [IJs] gene...