Sammir A. Poveda v. U.S. Attorney General
692 F.3d 1168
| 11th Cir. | 2012Background
- Sammir Poveda, a Nicaragua native, is a lawful permanent resident since 2002 under NACARA.
- In 2007, Poveda was convicted in Florida of battery on a child by bodily fluids, triggering removal proceedings.
- An IJ granted a 212(h) hardship waiver based on a misreading of Lanier and Yeung.
- The Board vacated the IJ’s decision, holding that a waiver under 212(h) requires concurrent adjustment of status for an alien within the United States.
- The Board's interpretation draws on Cabral and Klementanovsky and the agency’s regulation, and the government challenged the Board’s reading in this petition for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an alien within the U.S. is eligible for 212(h) without applying for adjustment | Poveda argues eligibility without concurrent adjustment | Board requires adjustment in conjunction with 212(h) for aliens inside the U.S. | Yes; the Board’s requirement is reasonable and controlling |
| Whether Poveda is an applicant for admission while within the U.S. | Poveda contends he is not seeking admission due to being already LPR | Poveda is assimilated to admission-seeking status when adjustment is sought | Poveda is not an applicant for admission while within the U.S.; waiver available only with adjustment or outside-readmission framework |
| Constitutional equal protection challenge to Board’s interpretation | Poveda asserts equal protection/due process violation | Board’s interpretation rationally differentiates between inadmissible vs deportable aliens | Rational basis review upheld the Board’s interpretation |
| Chevron deference and statutory interpretation of §212(h) vis-à-vis IIRIRA changes | Board’s post-1996 framework should be subjected to scrutiny | Agency interpretation reasonable under Chevron; IIRIRA changes do not undermine Sanchez framework | Board’s interpretation deemed reasonable; deference applied |
Key Cases Cited
- Lanier v. U.S. Att'y Gen., 631 F.3d 1363 (11th Cir. 2011) (statutory interpretation of 212(h) at issue in other context; eligibility framework discussed)
- Yeung v. INS, 76 F.3d 337 (11th Cir. 1995) (pre-1996 Board framework; held arbitrary distinctions regarding travel and readjustment)
- Cabral v. Holder, 632 F.3d 886 (5th Cir. 2011) (upheld that an alien within the U.S. must apply for adjustment to obtain 212(h))
- Klementanovsky v. Gonzales, 501 F.3d 788 (7th Cir. 2007) (upheld Board’s 212(h) interpretation requiring adjustment for in-country applicants)
- Chuang v. U.S. Att'y Gen., 382 F.3d 1299 (11th Cir. 2004) (equal protection rationale for differential treatment of deportable vs excludable aliens)