Dimitrios Papazoglou v. Eric Holder, Jr.
725 F.3d 790
| 7th Cir. | 2013Background
- Dimitrios Papazoglou, a Greek national, entered the U.S. on a B-2 visa (1986), married a U.S. citizen (1987), and adjusted to lawful permanent resident status (1990).
- In 2008 he pleaded guilty to third-degree sexual assault and physical abuse of a child; sentenced to imprisonment and probation.
- DHS charged him removable as having committed an aggravated felony; Papazoglou applied for adjustment of status under INA § 245 and a § 212(h) waiver of inadmissibility.
- The IJ granted the waiver and adjustment; the government appealed to the Board, which reversed: (1) holding Papazoglou statutorily ineligible for § 212(h) and (2) alternatively denying the waiver in the exercise of discretion.
- Papazoglou appealed to the Seventh Circuit, raising (a) a legal challenge to the Board’s statutory interpretation of § 212(h) and (b) arguments attempting to convert the Board’s discretionary denial into reviewable legal error by alleging improper legal standards and failure to defer to IJ factfindings.
- The Seventh Circuit limited its review to legal questions and constitutional claims (per the REAL ID Act), reviewed the statutory interpretation de novo, and declined to review the discretionary denial.
Issues
| Issue | Papazoglou's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether § 212(h) bars waiver for an alien who was not an LPR at time of initial entry but later adjusted status | § 212(h)’s phrase “previously been admitted…as an alien lawfully admitted for permanent residence” should allow waiver because admission as LPR can occur at adjustment date | "Admitted" includes the date of adjustment; anyone lawfully admitted for permanent residence after adjustment is barred | Court held plain meaning requires LPR status at time of lawful entry; Papazoglou was eligible for § 212(h) because he entered as a visitor, not an LPR |
| Whether the Board’s alternative denial of the waiver as a matter of discretion is reviewable | Papazoglou contends Board misapplied law, failed to defer to IJ on facts, and thus committed reviewable legal errors | Government: discretionary denials are unreviewable; Board applied proper legal standards | Court held it lacked jurisdiction to review the discretionary denial and found no legal error in the Board’s application of standards |
| Whether the Board failed to respect IJ factual findings (dispute over severity of family hardship, rehabilitation, recidivism risk) | Board improperly downplayed IJ’s findings (psychiatric harm, wife’s health, low recidivism risk) and thus substituted its own factfinding | Board explicitly stated IJ’s findings were undisturbed and considered them; any differing weight is a discretionary judgment | Court held Board acknowledged and considered IJ’s findings; disagreement is a discretionary reweighing, not a legal error |
| Whether the Board applied an unconstitutional per se rule against grants for sexual-offense convictions involving minors | Argues Board applied a categorical rule that positive equities could not overcome the conviction, violating due process | Board did not adopt a per se rule; it weighed the facts and concluded conviction outweighed equities in this case | Court rejected a constitutional challenge; Board’s weighing was discretionary and lawful |
Key Cases Cited
- Chevron v. NRDC, 467 U.S. 837 (agency deference framework)
- Vaca-Tellez v. Mukasey, 540 F.3d 665 (7th Cir.) (limits judicial review of discretionary removal/waiver decisions)
- Hanif v. Atty. General, 694 F.3d 479 (3d Cir.) (interpretation: § 212(h) bars those who were LPRs at entry)
- Leiba v. Holder, 699 F.3d 346 (4th Cir.) (same statutory interpretation of § 212(h))
- Martinez v. Mukasey, 519 F.3d 532 (5th Cir.) (same interpretation; § 212(h) analysis)
- Bracamontes v. Holder, 675 F.3d 380 (4th Cir.) (interpretive authority on § 212(h))