693 F.3d 416
3rd Cir.
2012

Jordana VERA, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent.

No. 11-3157.

United States Court of Appeals, Third Circuit.

June 13, 2012.

416

SLOVITER, VANASKIE, and GREENBERG, Circuit Judges.

Camille J. Mackler, Esq., New York, NY, Brian J. Murray, Esq., Jones Day, Charles Roth, Esq., National Immigrant Justice Center, Chicago, IL, for Petitioner. Sharon M. Clay, Esq., Eric H. Holder, Jr., Esq., Thomas W. Hussey, Esq., United States Department of Justice, Office of Immigration Litigation, Civil Division, Washington, DC, for Respondent.

of aggravated felonies.“).9 Like the Ninth Circuit, we can discern “no reason why Congress would give a pass to non-citizens who had fraudulently obtained LPR status while barring from relief non-citizens who had legitimately obtained LPR status.” Hing Sum, 602 F.3d at 1097 (citation omitted); see United States v. Wilson, 503 U.S. 329, 334, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992) (citing United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981) (when interpreting statutes, “absurd results are to be avoided“)).10

IV. Conclusion

Section 212(h)‘s statutory language, construction, and evolution make clear that “admission” and “admitted” refer, as in the INA‘s definition, to inspection and authorization by any immigration officer at the port of entry. See 8 U.S.C. § 1101(a)(13)(A). As Martinez was admitted following such procedures, after failing to disclose his arrest and subsequent conviction for an aggravated felony, the Section 212(h) waiver bar applies. For these reasons, we deny the petition for review.

ORDER

MORTON I. GREENBERG, Circuit Judge.

  1. Motion by Respondent to Dismiss Petition for Review for Lack of Jurisdiction and Request to Vacate Decision;
  2. Response by Petitioner to Motion to Dismiss Petition for Review for Lack of Jurisdiction and Request to Vacate Decision;
  3. Reply by Respondent to Petitioner‘s Response to Motion to Dismiss Petition for Review for Lack of Jurisdiction and Request to Vacate Decision.

The foregoing motion by Respondent to dismiss the petition for review for lack of jurisdiction and vacate the Court‘s opinion is granted and the petition for review is dismissed and the opinion is vacated. The Court is entering this order because there is no outstanding order of removal so there is nothing to review. The Court notes that it based its decision on the incorrect representation of the Department of Homeland Security that petitioner was admitted to the United States under the Visa Waiver Program and further notes that petitioner did not challenge this representation.

Notes

9
Martinez, for his part, argues that it is our reading of Section 212(h) that would lead to “perverse results when applied to other federal statutes,” such as legislation relating to an alien‘s eligibility for public benefits such as food stamps or supplemental security income. Brief for Petitioner at 25. However, the statutes suggested by Martinez are not part of the INA and therefore not administered by the BIA; accordingly, the BIA‘s construction of Section 212(h)‘s statutory language is irrelevant as to benefits eligibility. See 8 U.S.C. §§ 1101-1537; 42 U.S.C. § 1381 et seq.; 7 U.S.C. §§ 2013, 2020.
10
Despite clearly “absurd results,” other circuits have concluded that Congress may have had rational reasons for employing statutory language that, in the eyes of those circuits, unambiguously excepted aggravated felons convicted post-LPR admission from the waiver bar. See Bracamontes, 675 F.3d at 388; Martinez, 519 F.3d at 545. However, as discussed above, those circuits considered the import of the phrase “previously been admitted” but not in its complete modifying context of “previously been admitted ... as.” See supra, at 414-15.