*1 conceivably pro- a new court could initiate BRACAMONTES, arbitration,
ceeding following staying this Rendon Adolfo that, any if neces- Petitioner, action removes doubt opportunity he will have a full sary, judicial public policy review of his defense. 540-41, Sky Reefer, 515 at
See
U.S.
Attorney
HOLDER, Jr.,
H.
Eric
(observing
that there would be
S.Ct.
General, Respondent.
subsequent opportunity for
review
jurisdiction”);
court had
district
“retained
Bracamontes,
Adolfo Rendon
(O’Connor, J.,
policy country” quotation omitted)).
marks
rv.
Pursuant to affirm foregoing, judgment
district court’s the Arbitra- Aggar-
tion Clause enforceable and that against
ao must arbitrate his claims
defendants the Philippines. We never-
theless vacate the dismissal this case thereof, remand for reinstatement injunction request,
assessment of the arbitration, of a stay pending and for
such other and further proceedings as appropriate.
be PART,
AFFIRMED IN IN VACATED
PART, AND REMANDED Balen, move to
then]
set aside the arbitration
award.”
OPINION WYNN, Judge: Circuit Based on Petitioner’s conviction an for aggravated felony, the United States sought pursuant to remove him to section 237(a)(2)(A)(iii) of the Immigration and (INA). Nationality Act (“IJ”) judge denied Petitioner statutory eligibility for a waiver under 8 U.S.C. or section Following INA. appeal, Petitioner’s (“BIA”) the Board of Immigration Appeals agreed IJ, concluding that Peti- post-entry adjustment tioner’s of status to resident constituted an “admission” to the United States. Because we find that plain language of section does not bar alien who adjusts post-entry to lawful resident seeking status from a waiver of inadmissibility, grant petition, va- removal, cate the order of and remand this case to the BIA for proceedings. further I. Norfolk, ARGUED: Singh, Satnam Vir- Petitioner Adolfo Rendon Bracamontes’s ginia, Glaser, for Robyn Petitioner. Sheri brought mother him into the United States Department Justice, United States illegally 1976, from Mexico in when he was D.C., Washington, Respondent. for ON years 4, under two old. On December West, BRIEF: Tony Attorney Assistant 1987, Petitioner and his mother were General, Molina, Jr., Ernesto H. Assistant status, temporary resident Director, Immigration Office of Litigation, adjusted was to lawful Department Justice, 11, May status on 1990. Since Peti- D.C., Washington, Respondent. continuously tioner has lived in the United NIEMEYER, AGEE, States, Before except weeklong for a visit to Mexi- WYNN, Judges. Circuit co in June 1988. appealed Petitioner the IJ’s decision guilty Virgi- 1990. pled Petitioner felony of to the BIA.
nia state court wounding. He was sentenced malicious appeal pending, Petition- While that years prison, with seven sus- years ten July filed on er a motion remand proba- pended; he served his sentence adjudica- consideration complied with subsequently tion and protection application tion was released all court orders. Petitioner Against the United Nations Convention custody May shortly from (“Convention Torture”) Against Torture thereafter, States citi- he married a United grounds that he feared retaliation children, biological He has three zen. join refusing Mexican them gangs *4 seventeen, seven, eighteen, a and ages opposing their activities in California. nineteen-year-old stepson. 2010, 30, August the BIA dismissed On 2009, January spouse Petitioner’s In appeal, agreeing Petitioner’s IJ for Alien an 1-130 Petition Rela- submitted on the definitions of “admission” and “law- benefit, along with Petitioner’s tive for his fully for residence.” Register Permanent Application 1-485 The BIA Petitioner’s motion to also denied Adjust or Status. Petitioner Residence remand, holding that had failed Petitioner spite a waiver of removal of his sought could not presented to show that he have conviction, felony based on his at Against his Convention Torture claim spouse a status as the of United States the earlier the IJ. proceeding before citizen, his and asserted that removal hardship 9, 2010, his result extreme for a September would On Petitioner filed Following an and children. inter- spouse petition of the BIA decision for review 2009, August applica- Petitioner’s 28, 2010, view September with this On Court. was adjustment of status denied tion for a he filed motion with BIA to reconsid- that he was al- grounds on the er his for waiver eligibility resident, ready a lawful he was also and his motion to remand. Petitioner adjustment. eligible pro- Removal not sought stay of removal. That motion immediately ceedings were initiated denied, grounds Peti- was also on Petitioner. against any to show of law tioner had failed error decision, change fact or or that would 27, 2009, an IJ On October showing to meet burden of that his his Security’s of Homeland Mo- Department duplica- newly largely submitted —and applications to Pretermit Petitioner’s tion waiver, might alter the outcome. and a tive—evidence status petition for review concluding ineligible that he was for a Petitioner filed another The under 8 U.S.C. sec- of that BIA with this Court. waiver decision (“section 212(h) of the INA petitions by tion consolidated this Court were waiver”), aggravated felony 17, because of his 2010.1 on November Specifically, the IJ found that conviction.
Petitioner was admitted
II.
returning temporary
as a
resident
appeal,
presents two main
On
Petitioner
to Mexico in
following
weeklong
his
visit
(1)
statutorily
barred
arguments:
he is
subsequently
and was then
“admit-
a section
by
seeking
as a lawful
ted”
(2)
inadmissibility; and
the BIA abused
of his status in
virtue of
deported
2010.
Mexico
October
on
Petitioner
meantime.
us,
by denying
specific
question
motion to re-
issue before
discretion
his
becomes
BIA’s in-
precluding
him from
this court
whether the
mand
‘is
con-
terpretation
permissible
relief
Convention
based
additional
Torture,
(quoting
his motion
struction
statute.’”
Id.
Against
denying
2778).
reconsider,
Chevron,
at
stay
him a
U.S.
104 S.Ct.
denying
Moreover,
Supreme
issue in turn.
Court has noted
removal. We consider each
statute,
ambiguity
if there is
A.
judicial
branch
deference to the executive
agency
especially appropriate
“is
First,
argues
Petitioner
that con
immigration context where officials exer-
decisions,
trary to the IJ and BIA
he is
sensitive
especially
political
cise
functions
eligible
seek waiver of
questions
rela-
implicate
foreign
212(h).
under section
review de novo
We
Aguirre-Aguirre,
tions.”
BIA,
legal
including
conclusions of the
is
(internal quotation
Under articulated Chev- 1182(h). § ron, Specifically, section begin we our analysis with determi- in pertinent parts: states of nation whether the statute at issue is unambiguous respect question with to the Attorney may, General in his dis- so, presented. If plain meaning then the cretion, application waive the of [the controls the disposition ap- of Petitioner’s on, bars to admissibility based peal. Saintha v. Mukasey, alia, a inter conviction for crime in- (4th Cir.2008) Chevron, (citing moral volving turpitude] ... if— 2778). Thus, U.S. 104 S.Ct. we (1).... must determine Congress, whether (B) in the case an immigrant of who is INA, through the unambiguously pro- son, spouse, parent, of daughter or an alien hibited a section a citizen of the or an United States 212(h) waiver if he commits an lawfully alien felony subsequent adjust- to his post-entry if residence it is established to the ment to lawful resident status. satisfaction of the General Attorney hand, On the other ... statute “[i]f alien’s denial of admission or ambiguous respect is silent to the hardship would result extreme If Petitioner were appealing ney grant deny the discretion- General to or a waiver under ary subsection.”). However, Attorney deny decision of the General in- Petitioner inadmissibility, challenges him a waiver of would be determi- stead BIA's threshold jurisdiction without statutorily to review a decision. he ineligible such nation that even to 1182(h) ("No 212(h) waiver, See 8 U.S.C. shall question court have seek a of law section jurisdiction subject appellate to review a of the Attor- decision that remains to our review. lawful permanent tioner not receive lawfully or did States citizen the United son, adjustment parent, or until his in 1990 resident status spouse, alien; “lawfully entered into the daughter of such and has not authori- inspection and United States .... and immigration zation an officer” since (2) General, in his Attorney dis- such, argues he has that date. As he terms, cretion, pursuant to such plain never had an “admission” within the he procedures as conditions and of section and therefore meaning has consent- by regulations prescribe, inad- eligible remains seek waiver of applying reapply- or ed to the alien’s visa, missibility. for a for admission ing States, or of sta- agree this reading We accords
tus. plain meaning prop .... No waiver shall be erly utilizes definitions terms Con an in the case alien this subsection INA, gress provided codified previously been admitted who has U.S.C. 1101. “Admission” and “admit lawfully as an alien ad- United States an respect ted” are defined as “with permanent residence either mitted if alien, alien into the such admission the since the date of after inspection and authori aggravat- has been convicted an alien zation officer.” 8 felony the alien has not ed 1101(a)(13)(A). Clearly, neither continuously in the United resided status; in term includes less than 7 period for a *6 stead, contemplate physical cross both immediately preceding the of years date following of ing the border the sanction of to remove the proceedings initiation approval of United States authorities. from the United States. alien added). Thus, by plain its (emphasis Id. Further, ‘lawfully term ad “[t]he 212(h) prohibits an section alien language, permanent mitted residence’ means receiving a waiver of having lawfully status of been accorded lawfully alien entered the United if that in the privilege residing permanently of resident sta- with lawful States immigrant.” as Id. United States an felony an aggravated and committed tus 1101(a)(20). Thus, statutory using these as a subsequent to “such admission” definitions, portion of section relevant Id. (emphasis add- permanent resident.3 be rewritten as: could ed). No shall under this Here, be time last Petitioner entered an States, the case of alien who subsection his did the United by previously lawfully has entered into'the inspection and authorization an follow officer, inspection au- but immigration at that time he by an only temporary had resident status. Peti- thorization officer course, (5th Cir.2008) (citing plain language and Flores-Le Of use of 541-42 Gonzales, "inadmissibility,” ap- the term section 5 415 F.3d 379 n. dezma apply only seeking INS, pears (5th Cir.2005); to those aliens Jankowski-Burczyk v. admission, Petitioner, those, such who (2d Cir.2002); n. 2 F.3d & already resident sta- have lawful Gordon, Stanley Stephen Mailman & Charles However, "qualify- have held that tus. courts Yale-Loehr, Immigration Law Procedure ing aliens also obtain such removable ed.2001)). (rev. § 51.03 Mukasey, waivers.” Martinez waiver.”). having way, with the status Put another if as an alien of lawfully privilege Congress been accorded intended section to bar all of residing permanently the United lawfully admitted for “alien[s] if immigrant States ... since the residence,” there would have been no need such the alien date of admission phrase ... “previously include the ad- aggravated felony. been convicted of an mitted into the United States.” such, As an alien with lawful fact, In this Court has addressed the who status has entered Unit- “admission,” meaning though only in the legally, following inspection ed context of removal pursuant to INA officer, an immigration subsequently and is 237(a)(2)(A)(i), committing crime aggravated felony, convicted of is statu- years moral within turpitude five of an torily for a ineligible section waiver. alien’s “date of admission.” Aremu v. aliens, however, respect With to other Sec., Dep’t Homeland Attorney General retains discretion to Cir.2006). Aremu, applied grant of inadmissibility a waiver to “an that, Chevron doctrine and determined us- son, who immigrant spouse, parent, is the ing “admission” provided the definition of or daughter of a citizen of the United 101(a)(13)(A), in INA plain section 237 is an alien States or and unambiguous, adjust- and “the date of permanent residence if ... the alien’s de- ment of does not qualify status as ‘the date nial of admission would result extreme provision.” admission’ under that Id. at hardship to the United States citizenf.]” 8 579-81. 1182(h)(1)(B). Aremu, Similar to interpreta- the BIA’s The Government asks us to treat Peti- tion of section in the instant case tioner’s status as an test, fails prong the first of the Chevron purposes “admission” for section “Congress has directly spoken to pre- arguing that the “inspection and authoriza- issue,” question cise and the 101(a)(13)(A) tion” mentioned bar to a waiver of inadmissibility is not could refer process. ambiguous respect it applies. whom *7 Moreover, according Government, to the However, order, in its decision and statutory bar to a section waiver BIA that “Congress asserted did not in- any should to all apply and aliens with tend ... disrupt to principle the settled lawful resident status who com- adjustment that inspection of status and However, mit aggravated felonies. that and functionally admission were equiva- approach require would to ignore us lent” or “to differentiate section plain meaning of phrase the first eligibility based upon procedur- definition, “the lawful of the alien al mechanism under which an alien be- States,” into the United which is turn comes a lawful resident.” J.A. “inspection modified and authoriza- 65.4 tion” language. See Lanier v. United Gen., Att’y 1363, Regardless States of the BIA’s speculation 631 F.3d con- 1366 (11th Cir.2011) intent, (“By however, including cerning congressional the addition- al of having ‘previously plainly says says, condition statute been ad- what it and the a resident, mitted’ as lawful permanent fact remains that the definition of “admis- Congress has narrowed the class of sion” provided Congress simply lawful does permanent residents who are barred from not include status. 8 joint 4. appendix Citations to the are abbrevi- ated as "J.A.”
387
Aremu,
whole,
as
1101(a)(13)(A);
is read
a
ry provision
plain
450 F.3d
581;
provides
§of
that
language
per-
Nat’l Bank v. Ger
a
also Conn.
see
11406,
main,
249, 253-54, 112
physically
must have
entered the
503
S.Ct.
son
Unit-
U.S.
(“We
(1992)
States,
inspection,
have stated
after
as
lawful
Here, in
Commc’ns, Inc.,
contrast to the situations
FCC
Beach
Michel,
presented
Rosas-Ramirez,
113 S.Ct.
Martinez, F.3d at 545. We likewise stay argu We of removal. dismiss these regardless of whether some agree that — jurisdiction. ments for lack of deem such a distinction “absurd”— might 1252(a)(2)(C), “no Under and, as are rational explanations these jurisdiction any court shall have review such, upheld. must be See id. they order removal an alien who against final (“What is is that there are coun- relevant having reason of commit- is removable tervailing explanations for an aggra- a criminal offense” such as ted ‘adjust- distinction between ‘admitted’ and Nevertheless, the felony. following vated ment’, just if not plausible, which are “[n]othing ... provides so, more than the Government’s contention review, judicial limits or eliminates shall be reading ab- such a would lead to an review of constitu- precluding construed as Therefore, are at lib- result. not surd law questions raised tional claims unambiguous erty plain, to override filed upon petition with review 101(a)(13).”). §§ text of INA appropriate appeals court of accordance disparate eligibility If for a 1252(a)(2)(D). Id. section.” who en aliens Petitioner was found to be removable permanent resident status ter with lawful having aggra- committed adjust lawful based his post-entry those who Thus, felony. considering before vated resident status is not what claims, intended, we must de- this merits Petitioner’s Congress Congress, BIA, questions he raises amend the rele- termine whether or the must Court already had been protection plicitly it decided jurisdiction equal a similar chal- *10 courts). "substantial,” im- lenge it was several circuit because not 390
law,
jurisdiction,
over
we retain
III.
or
decisions,
fact
questions
discretionary
of
conclusion,
In
we find that the relevant
Saintha,
which we have none.
over
of
language
unambiguous,
section
is
F.3d
and that therefore the BIA
is not
decision
entitled to Chevron deference. Section
Here,
challenged by
BIA decisions
212(h) plainly provides that Petitioner is
Petitioner,
for
ruling
save
addressed
statutorily
barred from
a waiv-
statutorily ineligible
that he was
to
above
inadmissibility.
er of
Accordingly, we
inadmissibility
a
of
seek waiver
under sec-
review,
grant
petition
vacate the
212(h),
discretionary
tion
were either
in
removal,
order of
and remand this case to
nature or otherwise based on non-reviewa-
the BIA for
proceedings
further
and deter-
underlying factual
ble
determinations. See
discretionary
mination of the
decision to
(finding
id. at 250
Against
Convention
grant
a
Petitioner
section
waiver.
Torture determinations are reviewed un-
remaining
Petitioner’s
claims are dis-
standard,
der
substantial evidence
jurisdiction.
missed
lack of
which is
in
not reviewable
the case of the
of
an aggra-
removal
an alien convicted of
GRANTED;
PETITION FOR REVIEW
felony
vated
of
U.S.C. VACATED AND REMANDED IN PART
1252(a)(2)(C));
Gonzales,
§
Hussain v.
477 AND
IN PART
DISMISSED
(4th Cir.2007)
(noting that
the denial of a motion to remand is a
NIEMEYER,
Judge, concurring
Circuit
decision);
discretionary
Holder,
Narine
part
dissenting
part:
(“We
Cir.2009)
re-
I
majority’s
concur
Part II.B of the
view denial of a motion to reconsider for
opinion,
jurisdiction
holding
we lack
(citation omitted)).
an abuse of discretion.”
objections
entertain
to various discretion
Accordingly,
jurisdiction
we have no
ary
determinations
the Board of Immi
review these
claims.
8 U.S.C.
(“BIA”).
gration Appeals
But I dissent
1252(a)(2)(C); Saintha,
er a qualifies whether Bracamontes for waiv- I application aggravated er of the his Bracamontes, who a native of Mexico felony controlling conviction. The lan- § guage States in 1976 states: illegally entered the United two, granted temporary was was when he under No waiver shall be Shortly in 1987. thereaf- in the case of an alien who resident status subsection to ter, previously has been admitted Bracamontes left June lawfully as ad- Mexico, United States an alien visit to for a short United States if residence ... mitted temporary as a lawful resident. returning for the date of such admission the since May returning, Braca- After aggravat- alien has been convicted of an adjusted to of a was montes’ status felony____ ed lawful resident. added). § (emphasis 8 U.S.C. pleaded guilty In Bracamontes language The contends that DHS of malicious Virginia charge state wound- a denying previ- an “alien who has waiver years in for he served several
ing, ously been to the States admitted United discharge, he married a After his prison. lawfully perma- for as an alien citizen, with he has whom includes an alien whose nent residence” children, teenagers. now had three adjusted been that of lawful status has It only resident. relies not Department of Homeland “lawfully per- definition of (“DHS”) Security commenced removal residence,” 101(a)(20), § INA manent see against Bracamontes because proceedings 1101(a)(20), § which means “the who, admission, alien was he was an having been accorded the status felony. aggravated of an While convicted residing permanently in the privilege of removability, in- he Bracamontes conceded added), but (emphasis States” also United adjust- apply he for dicated that would position, the BIA’s established as reflected of a U.S. ment of status as husband Koljenovic, 25 I. & N. Dec. in Matter of § a for waiver under citizen and 2010). (BIA felony, application of his Bracamontes, hand, on the other con- require his remov- which otherwise would language denying waiver tends that pretermit sought DHS Braca- al. The at the applies only to aliens “admitted” of sta- applications montes’ i.e., resident, lawful permanent border a § he tus an alien who entered United according for waiver ineligible alien, as a lawful resident “admitted” 212(h). immi- BIA’s construction 101(a)(13)(A). Specifi- INA defined judge granted DHS’s motion gration cally, provision defines “admitted” applications, Bracamontes’ pretermit into the alien “the the BIA affirmed. inspection States after and authori- United petition (empha- Bracamontes now seeks officer” zation added). review, arguing qualified argues that he He that because he sis contrary States as law- never entered waiver under resident, in 1988 but rather of that section. interpretation BIA’s ful *12 resident, a temporary ing the waiver been privilege accorded the of lawful apply residing bar to him. permanently does in the United 1101(a)(20) § States.” 8 (emphasis majority opinion recognizes that if added). course, Of this definition of “law- 212(h) § ambiguous, is we should defer to fully admitted residence” the BIA under the Chevron doctrine and accurately describes Bracamontes’ circum- that “especially appropri- such deference is stances he because became lawful per- respect ate” with to matters. by manent resident of sta- 212(h) Ante, § at But it reads to be in 1990. tus unambiguous, and unambiguous its read- recognized The BIA the ambiguity ing contrary is to the one that has been 212(h) § by created two different by states, adopted the BIA. The majority definitions of defining “admitted” —one “the provided by definition of ‘admission’ “admitted” refer “entry” to to and the Congress simply does not an ad- include other defining “admitted” refer to to “sta- Ante, justment of status.” at 386. The tus.” But it resolved ambiguity majority’s finding basis for “plain 212(h) § read be consistent with other 212(h) meaning” § turns on fact provisions of the INA appar- and with the “admitted,” uses the term stand-alone Congress. ent intent of The BIA did not 101(a)(13)(A) § which is defined problem insurmountable, find the to be ante, “entry.” terms of See at 385-86. “[adjustment of status is essen- opinion Most of the majority proceeds as tially proxy inspection and permis- See, though proposition was obvious. border, sion to enter at the which given is (“[T]he e.g., ante, at plainly statute grace.” as a matter of administrative Kol- Indeed, says says”). it majority what jenovic, 221; 25 I. N.& Dec. at see also proposes rewording even its own Matter Rainford, 20 I. N.& Dec. § 101(a)(13)(A) incorporate § (BIA 1992) (“As we have repeatedly ante, definition. See at 385. held, an adjustment of status is merely however, This approach, recog- fails to procedural mechanism alien is nize that another § construction of position assimilated to the of one seeking can just be made that plausible is States”). to enter the United probably larger more rational in the The BIA has also catalogued litany of context the INA. Section uses not interpretive policy reasons to support only the defined terms “admitted” construction, including absurdity “admission,” which are defined that would if result individuals who were 101(a)(13)(A) § to refer to the border, never admitted but who of the alien inspection, it but also adjusted later to lawful resi- uses the term spe- “admitted” the more status, dent “lawfully are deemed phrase cific “lawfully perma- admitted for residence” residence,” nent which is defined § 101(a)(20), but not “admitted” despite 101(a)(20) refer to an fact that the word appears “admitted” Thus, status. the list con- definitions phrase “lawfully per- admitted for 101(a) tained in includes a definition for manent Koljenovic, residence.” See 25 I. standing “admitted” alone refer to “en- & N. Dec. at 222. try” and a definition of “admitted” as in- phrase cluded in “lawfully Koljenovic Rather than rejecting out- residence” to refer right, to “sta- its construction of would tus”—more particularly “the hav- status of require, majority attempts draw a §of Koljenovic in- construction would survive ra- explains It distinction. ante, scrutiny. en- legally had never See an alien who tional basis 388-89 volved (and who therefore *13 the border tered at & n. 5. term de- “admitted” as the is
was never
Indeed, may be
in rejecting
it
noted that
101(a)(13)(A)),
case
§
the
fined in
whereas
major-
holding Koljenovic,
BIA’s
in
legally
us
an alien who
now
involves
before
ity
prob-
has created even a more serious
“admitted”)
(and
tempo-
with
entered
acknowledged.
than it has
As the
lem
adjusted to law-
rary
and who later
status
212(h)
it, §
only
not
majority construes
resident
status without
permanent
ful
ones,
over
illegal
legal
rewards
entrants
ante,
Thus,
at
See
387-88.
reentry.
legal
it
rewards a subset of
en-
but
also
that, if an alien with lawful
majority allows
legal
another
trants over
subset
en-
previ-
has never
permanent resident status
trants,
Specif-
no
with
discernable reason.
border,
ously
legally
at the
been
ically,
approach
majority’s
rewards
“date of ...
the words “admitted” and
Bracamontes,
such
lawfully
those
who
212(h)
§in
be
in
must
defined
admission”
in
having
entered the United States
status, as
in
adjustment of
used
terms of
permanent
no lawful
resident status and
101(a)(20),
§
than
at
physical
rather
adjusted
subsequently
to lawful
101(a)(13)(A).
border,
§
as used at
status,
lawfully
residence
those who
over
one,
majority’s
concession is a sensible
entered with
It
analysis.
also fatal to its entire
but it is
place.
the first
status
necessity
linguistic
of con-
proves that the
§
refer-
struing “admitted”
given
Were
the choice as to which
we
101(a)(13)(A)
§
so
ence to
is not
obvious
applied,
construction of
should be
all,
directly
ma-
and it
subverts the
find
undoubtedly
we should
the BIA’s con-
to
to
jority’s
attempt
bold
reword
more
satisfactory
struction far
that it
interpretation.
fit
“unambiguous”
its
only
stan-
satisfies
reasonableness
weighs
Another
consideration
gives
Congress’
but
effect
dard
also
full
approach
in favor of the BIA’s
strongly
in view of the
purposes
“overall structure
Congress
“no indication that
gave
[it]
Koljenovic,
the Act.”
25 I. N. Dec. at
&
the limitations
into
intended
it built
Astrue,
224;
57-
cf. Schafer
apply
previ-
to those aliens whose
(4th Cir.2011) (reviewing congressional
ous admission to lawful
resi-
legislative history at
purpose and
Chevron
through
dent
occurred
the overseas
status
one). But
we
choose
step
what
would
process,
majority
consular
but not to the
quite irrelevant. Presented
the matter is
through
aliens whose admission occurred
indisputable
ambiguity
adjustment of
I. &
Koljenovic,
status.”
must
to the BIA under
we
defer
N.
at 224. It is difficult
fathom
Dec.
principles
of Chevron.
why Congress would have wished to bar
Chevron deference lies
“the heart of
aliens who
entered
it
law”
modern administrative
“en-
with lawful
resident sta-
officials,
subject
agency
sures that
who are
§of
reaping
tus from
the benefits
accountability
pos-
greater political
illegally
while
aliens who
en-
permitting
greater
expertise
sess
relevant
than
country
doing
tered the
so. The
implementing pro-
judges, take
lead
exactly back-
resulting incentives would be
Schafer,
grams delegated
their care.”
Despite an effort
to rationalize
wards.
have
distinction,
with the construction of the INA. Fourth Circuit. Mukasey, Saintha See (4th Cir.2008). “ambigu If the statute is Argued: Jan. *14 ques ous” with respect interpretive March Decided: presented, then must
tion defer agency’s approach long so as it “reasonable.” is Nat 'l Elec. Ass’n v. U.S. Mfrs.
Dep’t Energy, 654 F.3d Cir.2011).
Because indisputably ambig- is
uous and because the BIA’s resolution of reasonable, ambiguity I would defer the BIA accordingly affirm.
UNITED STATES of America ex rel. DRAKEFORD, M.D.,
Michael K.
Plaintiff-Appellee, SYSTEM,
TUOMEY HEALTHCARE
INCORPORATED, Defendant-
Appellant,
Womble, Carlyle, Sandridge Rice Firm;
Law Ambulatory Wesmark
Surgery Center, LLC; James Arthur
Goodson, III, M.D.; Saccone, Kim
Movants.