765 F.3d 1324
8th Cir.2014Background
- Giovanny Rivas, a lawful permanent resident since 1998, was convicted twice in Florida in 2001 of petit larceny, making him removable under 8 U.S.C. § 1227(a)(2)(A)(ii).
- After the convictions, Rivas left and reentered the U.S. three times (2004, 2005, 2006) without notifying officials of any inadmissibility; reentries were not detected or questioned.
- DHS denied his naturalization application (2007) and initiated removal proceedings; Rivas conceded removability but applied for a § 212(h) waiver of inadmissibility, invoking Matter of Sanchez (nunc pro tunc waiver for those who could have sought a waiver at the border).
- The immigration judge granted the waiver based on Sanchez and hardship to Rivas’s parents; DHS appealed to the Board of Immigration Appeals (BIA).
- The BIA held that after statutory amendments (1990 and 1996), § 212(h) requires that a waiver applicant concurrently apply for a visa, admission, or adjustment of status; it overruled Sanchez for cases governed by the amended statute and ordered Rivas removed.
- The Eleventh Circuit reviewed the BIA’s statutory interpretation under Chevron, affirmed that the BIA’s reading was reasonable, and denied Rivas’s petition for review.
Issues
| Issue | Rivas's Argument | DHS/BIA's Argument | Held |
|---|---|---|---|
| Whether a removable alien who left and reentered may obtain a nunc pro tunc § 212(h) waiver while inside the U.S. | Rivas: Sanchez allows a nunc pro tunc waiver because he could have applied at reentry. | BIA/DHS: § 212(h), as amended, requires concurrent application for visa/admission/adjustment; no standalone nunc pro tunc waiver. | Held for BIA/DHS: amended § 212(h) reasonably requires concurrent application; Sanchez no longer controls. |
| Whether the BIA reasonably interpreted the amended statute (Chevron deference) | Rivas: BIA unlawfully disturbed long-standing Sanchez precedent without adequate justification. | BIA/DHS: statutory text and amendments justify overruling Sanchez; regulation supports requiring adjustment application. | Held: BIA’s interpretation is reasonable and entitled to deference. |
| Whether denying nunc pro tunc relief creates an irrational classification between aliens who traveled and those who stayed | Rivas: Distinction is arbitrary and violates equal protection/rational basis. | BIA/DHS: Congress reasonably distinguished for deterrence, public safety, administrative access, and to avoid rewarding criminal LPRs. | Held: Rational-basis review satisfied; multiple legitimate rationales exist. |
| Whether prior BIA cases (e.g., Abosi) compel relief for Rivas | Rivas: Abosi and Sanchez support granting waiver. | BIA/DHS: Abosi applies to applicants seeking readmission from abroad; Rivas sought relief from inside after undetected reentry. | Held: Abosi distinguishable; BIA’s distinction is reasonable. |
Key Cases Cited
- Poveda v. U.S. Att'y Gen., 692 F.3d 1168 (11th Cir. 2012) (upholding BIA’s interpretation that § 212(h) waiver requires concurrent application for visa/admission/adjustment)
- Cabral v. Holder, 632 F.3d 886 (5th Cir. 2011) (affirming limits on nunc pro tunc waivers after statutory amendments)
- Klementanovsky v. Gonzales, 501 F.3d 788 (7th Cir. 2007) (reasonableness of distinguishing aliens who seek readmission from those removable after admission)
- Judulang v. Holder, 132 S. Ct. 476 (U.S. 2011) (criticizing asymmetrical treatment created by certain retroactive waiver practices)
- Margulis v. Holder, 725 F.3d 785 (7th Cir. 2013) (explaining that overruling Sanchez was grounded in statutory interpretation)
- Francis v. INS, 532 F.2d 268 (2d Cir. 1976) (illustrating prior inconsistencies between aliens who traveled abroad and those who remained)