GEORGE EDUARD NASTASE, Petitioner, v. WILLIAM P. BARR, U. S. ATTORNEY GENERAL, Respondent.
No. 18-60264
United States Court of Appeals for the Fifth Circuit
July 1, 2020
JENNIFER WALKER ELROD, Circuit Judge
Petitions for Review of the Orders of the Board of Immigration Appeals. Before ELROD, WILLETT, and OLDHAM, Circuit Judges.
Romanian native George Eduard Nastase petitions for review of the Board of Immigration Appeals (BIA) decisions denying
I.
Nastase was born in 1985 in Romania. In 1986, he was admitted to the United States as a refugee in the care of his parents. After his parents divorced eight years later, Nastase lived with his mother and siblings. In 1999, his mother became a naturalized citizen. In 2006, Nastase applied for adjustment of his immigration status under
Those crimes landed Nastase in the Dallas County Jail in 2012, where he was identified by Department of Homeland Security (“DHS“) agents. DHS then instigated removal proceedings against him. Because Nastase was not in federal custody at the time, the Immigration Judge (IJ) administratively closed the proceedings.
When the removal proceedings restarted in 2017, DHS alleged two bases of removability: (1) that Nastase had been “convicted of two or more crimes involving moral turpitude” under
The IJ rejected Nastase‘s citizenship argument, concluding that his admission as a refugee did not meet the derivative citizenship statute‘s requirement of “lawful admission for permanent residence.”
Nastase appealed these determinations to the BIA, which dismissed the appeal on essentially the same reasoning provided by the IJ. Nastase proceeded to file a petition for review of the BIA‘s citizenship decision in this court, while simultaneously pursuing a motion for reconsideration of the waiver decision at the BIA. When the BIA denied the motion, Nastase filed an additional petition for review of that denial.
II.
In his first petition for review, Nastase argues that he is not removable because his childhood admission as a refugee was a “lawful admission for permanent residence” and he thereby received derivative United States citizenship when his mother became a citizen in 1999. We disagree.
A.
We have jurisdiction to review Nastase‘s citizenship claim under
LPR status is “the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.”
(1) At least one parent of the child is a citizen of the United States, whether by birth or naturalization. (2) The child is under the age of eighteen years. (3) The child is residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence.
The Fifth Circuit has not decided whether Chevron deference applies to the BIA‘s interpretation of the derivative citizenship statute. See Bustamante-Barrera, 447 F.3d at 393–94 (declining to decide whether Chevron deference applies to § 1432, the now-repealed precursor to § 1431). However, the Fifth Circuit has concluded that Chevron deference never applies to non-precedential BIA decisions. See Dhuka v. Holder, 716 F.3d 149, 154-56 (5th Cir. 2013). The BIA‘s decision in this case has not been designated as precedential. A non-precedential BIA decision is given whatever weight is appropriate based on “the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade.” Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944); see Dhuka, 716 F.3d at 156. In any event, this case does not turn on Chevron deference because our disposition would be the same whether we applied it or not.
B.
To have met the requirements for derivative citizenship in 1999, as he claims, Nastase must have then been “residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence.”1
Nastase admits that no court in any jurisdiction has ever construed refugee status to include LPR status, and that the admission of refugees has traditionally been termed “conditional.” Oral Argument at 8:58; see also In re D-K-, 25 I. & N. Dec. 761, 767–68 (B.I.A. 2012) (discussing “the conditional nature of a refugee‘s status” and noting that “refugee admission is impermanent and subject to contingencies“). Nevertheless, he argues that his status as a refugee made him a permanent resident in the sense that he could reside in the United States “indefinite[ly] unless and until terminated.” Thus, he says, all refugees meet the statutory definition of “permanent“: “The term ‘permanent’ means a relationship of continuing or lasting nature, as distinguished from temporary, but a relationship may be permanent even though it is one that may be dissolved eventually at the instance either of the United States or of the individual, in accordance with law.”
This contention is unpersuasive. Even assuming arguendo that Nastase‘s construal of these definitional statutes “is not inconsistent with the language of th[e] provision[s] examined in isolation, statutory language cannot be construed in a vacuum.” Davis v. Mich. Dep‘t of Treasury, 489 U.S. 803, 809 (1989). Indeed, “[i]t is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” Id.
As the Attorney General points out, the rest of the statutory scheme evinces a clear distinction between refugee status and LPR status.
Nastase argues that his reading would not render
As Nastase admitted in the immigration proceedings, he was only “conditionally“—not permanently—“admitted as a [r]efugee.” As a result, he has not met the requirements of the derivative citizenship statute. His first petition for review is therefore DENIED.2
III.
In his second petition for review, Nastase argues that he was improperly denied the waiver of inadmissibility necessary to permit him to adjust to LPR status under
A.
The Immigration and Nationality Act permits the Attorney General, in his discretion, to waive an alien‘s inadmissibility “for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.”
In general, we lack jurisdiction to review the Attorney General‘s discretionary immigration decisions. See Kucana v. Holder, 558 U.S. 233, 245 (2010);
The BIA‘s denial of a motion for reconsideration is reviewed “under a highly deferential abuse-of-discretion standard.” Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005). This means that courts will only disturb such a ruling if it is “capricious,
B.
First, Nastase contends that the BIA acted ultra vires by applying a “heightened standard” to his waiver application. He analogizes to our decision in Jean, where we determined that the Attorney General acted within his authority in applying a heightened standard to waiver applications from aliens who had “engage[d] in violent criminal acts.” 452 F.3d at 397 (quoting In re Jean, 23 I. & N. Dec. 373, 384 (B.I.A. 2002)). Because he is not a violent criminal, Nastase argues, a heightened standard is inappropriate here.
This argument fails because the BIA did not apply a heightened standard to Nastase. In Jean, we noted that the Attorney General required violent criminals to show that “extraordinary circumstances” supported their waiver application—a requirement not imposed on typical applicants. Id. (quoting In re Jean, 23 I. & N. Dec. at 397). No such requirement was imposed on Nastase.4 Instead, the BIA applied the normal standard, “balancing the various humanitarian, family unity and public interest considerations presented.” See
a heightened standard to his waiver application and thereby acted ultra vires.
Thus, to the extent Nastase‘s petition presents the legal issue of whether the BIA applied that heightened standard, the petition must be denied. To the extent Nastase‘s petition presents the issue of whether the BIA should have weighed the equities of his case more favorably to him, we are without jurisdiction to consider it for the reasons explained infra. Nastase may not—merely by “phras[ing] his argument in legal terms“—“use[] those terms to cloak a request for review of the BIA‘s discretionary decision, which is not a question of law.” Delgado-Reynua v. Gonzales, 450 F.3d 596, 599–600 (5th Cir. 2006).
Turning now to the second issue he raises in his second petition, Nastase argues that the BIA improperly denied his motion for reconsideration when he had in fact identified a legal error in its decision: failing to consider factors relevant to one of the statutory grounds for a waiver, “humanitarian purposes.” See
But whether or not the BIA considered each of the facts Nastase alleged, we are without jurisdiction to review its discretionary decision. The statute permits the Attorney General to provide a waiver “for humanitarian purposes,” but does not require it. As we have held in an analogous context, the “conten[tion] that the [Attorney General] did not consider all of the relevant factors” in denying discretionary relief “does not involve a constitutional claim or a question of law; therefore, this court does not have jurisdiction to review [the] claim.” Sung v. Keisler, 505 F.3d 372, 377 (5th Cir. 2007); see also Sattani v. Holder, 749 F.3d 368, 372 (5th Cir. 2014) (“Petitioners’ claim that the IJ did not properly take into account all the hardship factors merely asks this Court to replace the IJ‘s evaluation of the evidence with a new outcome, which falls squarely within the jurisdictional bar of
The Supreme Court‘s recent decision in Guerrero-Lasprilla does nothing to change this analysis. In that case, the Supreme Court took up the question of how to distinguish reviewable legal issues from unreviewable factual issues. See Guerrero-Lasprilla, 140 S. Ct. at 1068. The result was holding that “the application of a legal standard to undisputed or established facts” is a “question[] of law” under
IV.
For the reasons stated, Nastase‘s first petition for review is DENIED. His second petition for review is DENIED in part and DISMISSED in part for lack of jurisdiction.
Lyle W. Cayce
Clerk