Husic v. Holder
776 F.3d 59
2d Cir.2015Background
- Husic, a Yugoslav-born Montenegrin, entered the U.S. as a B-2 visitor in 1994 and later was granted asylum in 1995.
- He became a lawful permanent resident in 1998 via adjustment of status, while his spouse is also an LPR and his children include two LPRs and a U.S. citizen.
- In 2012, Husic pleaded guilty to attempted criminal possession of a weapon in the second degree under N.Y. Penal Law § 265.03 and received a three-year sentence.
- In 2013, he was served with a Notice to Appear charging removability based on a firearms offense and an aggravated felony claim; he admitted removability but denied aggravated-felony removals and sought a § 212(h) waiver and a continuance.
- The Immigration Judge held the conviction aggravated felony, determined ineligible for § 212(h) waiver because he was an LPR with an aggravated felony, and denied a continuance.
- The BIA affirmed and adopted the IJ’s reasoning in a non-precedential decision; Husic petitioned for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 212(h) waiver is available to Husic | Husic argues he was not admitted as an LPR, so § 212(h) applies to him. | The government argues he fits the § 212(h) bar because he is an alien previously admitted as an LPR. | Unambiguous that § 212(h) does not bar Husic; he may seek a waiver. |
| Scope of remand and continuance ruling | The petition includes a continuance issue, potentially moot due to time elapsed. | Continuance denial is part of the challenged decisions; mootness may not apply. | Contingent issue deemed moot; petition dismissed to extent of continuance challenge. |
Key Cases Cited
- Mizrahi v. Gonzales, 492 F.3d 156 (2d Cir. 2007) (Chevron deference applicable when BIA reasoning relied upon)
- Bracamontes v. Holder, 675 F.3d 380 (4th Cir. 2012) (statutory ambiguity and scope of § 212(h) waiver)
- Stanovsek v. Holder, 768 F.3d 515 (6th Cir. 2014) (limitation of § 212(h) interpretation; non-full-scope approach)
- Negrete-Ramirez v. Holder, 741 F.3d 1047 (9th Cir. 2014) (agency's interpretation and statutory context)
- Hanif v. Att’y Gen., 694 F.3d 479 (3d Cir. 2012) (textual reading and implications for § 212(h))
- Lanier v. U.S. Att’y Gen., 631 F.3d 1363 (11th Cir. 2011) (statutory interpretation within INA framework)
- Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008) (adjustment of status and interpretation of ‘admitted’)
- Roberts v. Holder, 745 F.3d 928 (8th Cir. 2014) (ambiguous text interpretation of § 212(h); per curiam)