Rana v. Holder
654 F.3d 547
5th Cir.2011Background
- Rana, a Pakistani national, lawfully residing in the United States, pleaded guilty in 2003 to unlawful possession of less than two ounces of marihuana and sought adjustment of status based on marriage to a U.S. citizen.
- Because of the 2003 controlled-substance conviction, Rana was inadmissible under § 1182(a)(2)(A)(i)(II) and obtained a § 1182(h) waiver, allowing adjustment to lawful permanent resident.
- In 2005 Rana pleads guilty to a second offense of possessing less than two ounces of marihuana and later travels abroad; upon return he again faces inadmissibility unless a waiver is available.
- In 2007 DHS serves notice to appear and alleges inadmissibility under § 1182(a)(2)(A)(i)(II) for the 2005 conviction; Rana seeks another § 1182(h) waiver.
- An IJ denied the § 1182(h) waiver on the theory that Rana was ineligible due to two offenses and because only a single offense may be waived; the BIA affirmed.
- The Fifth Circuit reviews de novo questions of law, holding that § 1182(h) does not allow a waiver for multiple offenses if a prior waiver already related to one offense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1182(h) allows a waiver when there are two marihuana offenses | Rana argues 'single offense' limits waiver to one offense, so prior waiver makes current waiver relate to a single offense (the 2005 offense). | The government argues 'single offense' means total offenses; a waiver cannot cover two offenses even if one was previously waived. | Total offenses control; two offenses render ineligible for a § 1182(h) waiver. |
Key Cases Cited
- Amouzadeh v. Winfrey, 467 F.3d 458 (5th Cir. 2006) (waiver effects relate to inadmissibility not underlying conviction)
- Abbasi v. Holder, 351 F. App'x 872 (5th Cir. 2009) (waiver may affect inadmissibility ground, not the conviction itself)
- Mushtaq v. Holder, 583 F.3d 875 (5th Cir. 2009) (deference standards applied to BIA/ IJ determinations)
- Thibodeaux v. United States, 211 F.3d 910 (5th Cir. 2000) (jurisdictional review of BIA/ IJ decisions)
- Zhu v. Gonzales, 493 F.3d 588 (5th Cir. 2007) (interpretation of immigration statutes under de novo review)