Husic v. HolderHusic v. Holder
MICHAEL P. DIRAIMONDO (Marialaina L. Masi, Thomas E. Moseley, Stacy A. Huber, on the brief), DiRaimondo & Masi, LLP, Melville, New York, for Petitioner.
YEDIDYA COHEN, Trial Attorney, Office of Immigration Litigation; Stuart F. Delery, Assistant Attorney General, Civil Division; Jennifer Williams, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.
(Russell R. Abrutyn, Troy, Michigan, and Mary Kenney, Washington, D.C., for Amici Curiae American Immigration Lawyers Association and the American Immigration Council.)
KATZMANN, Chief Judge:
Petitioner Hasim Husic, a native of the former Yugoslavia and citizen of Montenegro, seeks review of a February 4, 2014 non-precedential decision of the
This case presents an issue of first impression in this Circuit — whether an alien who lawfully entered the country without lawful permanent resident (LPR) status but later adjusted to LPR status is eligible to seek a waiver of inadmissibility under
BACKGROUND
Petitioner is a 65-year-old native of the former Yugoslavia and citizen of Montenegro. He entered the United States as a B-2 visitor on or about July 5, 1994, was subsequently granted political asylum in 1995, and became an LPR on July 28, 1998 based upon an application for adjustment of status. Husic s wife of 39 years is also an LPR. He and his wife are the parents of three children, two LPRs and a U.S. citizen.
On or about August 21, 2012, Husic pleaded guilty to violating New York Penal Law § 265.03, attempted criminal possession of a weapon in the second degree. He was sentenced to three years incarceration.
Then, on or about February 11, 2013, Husic was served with a Notice to Appear. He was charged with removability pursuant to
On September 18, 2013, the IJ issued an oral decision. He held that Husic s conviction constituted an aggravated felony under both
Husic appealed to the BIA, and on February 4, 2014, the BIA dismissed the appeal, largely adopting the IJ s reasoning. The instant petition for review was timely filed on February 26, 2014.1
On appeal, Husic challenges the IJ and BIA s decisions (1) finding that he is ineligible for adjustment of status under
We review questions of law de novo, but must give appropriate deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council Inc. (Chevron), 467 U.S. 837 (1984), to the Board s interpretation of the INA. Ganzhi v. Holder, 624 F.3d 23, 28 (2d Cir. 2010) (per curiam).
I. Husic s Eligibility for a Waiver Under INA § 212(h)
We first consider whether the IJ and BIA erred in finding that Husic is ineligible to seek a waiver of inadmissibility under
By way of background, Husic requests a discretionary adjustment of status under
The INA also defines two sets of terms contained in § 212(h) that are central to this petition.
Husic contends that although he was convicted of an aggravated felony, the § 212(h) aggravated-felony bar does not apply to him because he is not an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence. He reasons that he was admitted to the United States as a visitor, and not as an LPR, and therefore attained LPR status through adjustment of status, rather than when he was admitted into the country. Seven of our sister Circuits have held that a person in Husic s position is eligible to seek a waiver of inadmissibility based upon the plain language of § 212(h). See, e.g., Hanif v. Att y Gen., 694 F.3d 479 (3d Cir. 2012); Bracamontes v. Holder, 675 F.3d 380 (4th Cir. 2012); Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008); Stanovsek v. Holder, 768 F.3d 515 (6th Cir. 2014); Papazoglou v. Holder, 725 F.3d 790 (7th Cir. 2013); Negrete-Ramirez v. Holder, 741 F.3d 1047 (9th Cir. 2014); Lanier v. U.S. Att y Gen., 631 F.3d 1363 (11th Cir. 2011). But see Roberts v. Holder, 745 F.3d 928 (8th Cir. 2014) (per curiam) (holding that this provision is ambiguous and that the BIA s interpretation is reasonable). Relying on these cases and a textual analysis of the provisions at issue, Husic argues that § 212(h) has been made unavailable only to an alien who was admitted as an LPR, rather than one who, like Husic, adjusted to LPR status once already in the United States after lawful entry as a visitor.
In response, the government contends that Husic is barred from seeking a § 212(h) waiver because the BIA reasonably interpreted the ambiguous provision to find that Husic is an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence. Under the BIA s interpretation, Husic was admitted to the United States as an alien lawfully admitted for permanent residence when he obtained LPR status following the approval of his application for adjustment of status. In support of its view, the government relies on the one Circuit decision adopting its view, see Roberts, 745 F.3d 928, as well as intratextual arguments, legislative history, and a purposive invocation to avoid absurd results.
We afford Chevron deference to the BIA s interpretations of statutes when those interpretations are issued as binding, published decisions. See Ganzhi, 624 F.3d at 28. While the BIA s decision in this case was a single-member non-precedential decision, we have previously held that where . . . the challenged unpublished decision relies on a binding published decision, Chevron deference will extend to that earlier decision s reasonable resolution of statutory ambiguity. Mizrahi v. Gonzales, 492 F.3d 156, 158 (2d Cir. 2007). Because the BIA relied on its earlier precedential decision, In re Koljenovic, 25 I. & N. Dec. 219 (B.I.A. 2010), in interpreting § 212(h), we apply Chevron deference to the BIA s interpretation.
The Chevron inquiry is two-fold. We must first consider de novo whether Congress has clearly spoken to the question at issue. Mizrahi, 492 F.3d at 158. If it has, that is the end of the matter. Id. (quoting Chevron, 467 U.S. at 842-43). If, however, we find that the statute is silent or ambiguous as to the precise question at issue, we must defer to any reasonable interpretation of the statute adopted by the BIA as the entity charged by Congress with the statute s enforcement. Boluk v. Holder, 642 F.3d 297, 301 (2d Cir. 2011) (internal quotation marks and alterations omitted); see also Scialabba v. Cuellar de Osorio, 134 S. Ct. 2191, 2203 (2014) (plurality opinion).
We begin with the text of the statute. See, e.g., Mizrahi, 492 F.3d at 158. Particularly because the definition of the crucial statutory term admitted was enacted at the same time as the § 212(h) limitation, see Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA),
No waiver shall be granted under this subsection in the case of an alien who has previously been [granted lawful entry . . . into the United States after inspection and authorization by an immigration officer ] as an alien [with 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, ] if either since the date of such admission the alien has been convicted of an aggravated felony or the alien has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien from the United States.
Applying the statutory definitions, we find that Husic is not an alien who has previously been admitted to the United States as an alien lawfully admitted
We reach this conclusion for several reasons. First, and contrary to the government s position, Husic was not admitted when he became an LPR in 1998 through adjustment of status. The IIRIRA expressly defined [t]he term[] . . . admitted [to] mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer. IIRIRA,
Second, Husic s proposed interpretation avoids rendering certain portions of § 212(h) meaningless surplusage. See, e.g., Duncan v. Walker, 533 U.S. 167, 174 (2001). Interpreting the statute to require only an alien lawfully admitted for permanent residence would deprive of meaning the phrase admitted to the
The government recognizes the facial strength of Husic s textual arguments. See Roberts, 745 F.3d at 933 (holding in favor of the government s position, but acknowledging that [r]eading § 1182(h) in isolation, one might conclude . . . that the meaning of admitted is clear ). The government instead argues that the structure of the statute as a whole, as well as other specific provisions, creates ambiguities that require us to look beyond the text of § 212(h) and the statutory definitions.
For example, the government points to the statutory language in
The government also argues that Husic s preferred interpretation of
After considering the specific statutory provision at issue as well as the statutory scheme as a whole, we conclude that the statute unambiguously permits an individual who lawfully entered as a non-LPR and later adjusted to LPR status to seek a discretionary waiver of inadmissibility pursuant to
We further observe that even if we were to consider the government s arguments regarding legislative history and absurd results, those arguments are not winning ones. The legislative history as to this specific provision is quite sparse and provides tenuous support for both sides positions. For example, the government s highly generalized invocations of legislative purpose are based on scraps of legislative history that have been rejected by other Circuits. See, e.g., H.R. Rep. No. 104-469, pt. I, at 225-26 (1996); see also, e.g., Hanif, 694 F.3d at 485-86. Equally unpersuasive are Husic s attempts to rely on post-enactment legislative inaction on proposed amendments to the immigration laws following IIRIRA s passage. See H.R. 2413, 105th Cong., § 4 (introduced on Sept. 5, 1997). The amici s discussion of the legislative history of IIRIRA is somewhat more reliable and lends only modest support to Husic s position. Compare Immigration in the National Interest Act of 1996, H.R. 2202, 104th Cong., § 301(h) (as passed by House, Mar. 21, 1996) (indicating that it amends INA § 212(h) to apply the
Additionally, while it is true that Husic has not identified a specific congressional motivation for barring only LPRs who lawfully entered as LPRs from obtaining a discretionary § 212(h) waiver, it is not our job to speculate, particularly in light of the unambiguous text and the absence of meaningful legislative history, as to why Congress might have drafted this statutory provision in the way that it did. We are also not persuaded that it is an absurd result for Congress to have exempted from the § 212(h) aggravated-felony bar those who became LPRs through adjustment. The government argues that such an exemption of aliens who became LPRs through adjustment is absurd because a large portion of LPRs attain their status through adjustment. But the prevalence of adjustment as an avenue for LPR status could just as readily show that Congress
Having found that the § 212(h) aggravated-felony bar does not apply to aliens in Husic s position, we must determine the precise scope of our decision. At oral argument, the government asserted that we must decide the full scope of the § 212(h) bar in this case. The government argues that if we rule in Husic s favor, we would also need to exempt other LPRs, including those who initially entered without inspection, from the § 212(h) aggravated-felony bar. According to the government, the exemption of other types of LPRs from the § 212(h) bar would produce inconsistent or absurd results in light of other provisions of the INA.
But we need not delineate the full scope of the § 212(h) bar in this case. We follow the lead of at least three other Circuits and decline to reach the broader question of the full scope of § 212(h) waiver because such a decision is not necessary to address the matter at hand. See Bracamontes, 675 F.3d at 388; Stanovsek, 768 F.3d at 518; Negrete-Ramirez, 741 F.3d at 1051-53 (majority opinion).
II. Husic s Entitlement to a Continuance to Pursue Post-Conviction Relief
Husic also petitioned for this Court s review of the IJ and BIA s decisions to deny his request for a continuance to pursue post-conviction remedies. At oral argument, however, Husic s counsel conceded that this challenge was moot
CONCLUSION
For the foregoing reasons, we GRANT the petition in part, VACATE Husic s removal order to permit his application for a waiver of inadmissibility under § 212(h), DISMISS the remainder of the petition as moot, and REMAND for further proceedings consistent with this Opinion. Each party shall bear its own costs on this petition.