Lead Opinion
OPINION
Juana Negrete-Ramirez petitions for review of the Board of Immigration Appeal’s (“BIA”) order dismissing her appeal. Negrete-Ramirez contends that the BIA erred in determining that the statutory language of the Immigration and Nationality Act (“INA”) excludes her from eligibility to apply for an inadmissibility waiver under Section 212(h) of the INA, 8 U.S.C. § 1182(h) (“ § 212(h) waiver”). In reaching its conclusion, the BIA misinterpreted the plain language of INA § 212(h) and Ninth Circuit precedent. A de novo review of the statutory text, as well as the precedent of this Court and our sister Circuits, leads to the conclusion that Neg-rete-Ramirez is eligible to be considered for the § 212(h) waiver. See Papazoglou v. Holder,
I.
Negrete-Ramirez was admitted into the United States, as defined by 8 U.S.C. 1101(a)(13), in April 1996 on a B2 visitor visa. She subsequently adjusted her status to that of a lawful permanent resident (“LPR”). Four years later, Negrete-Ra-mirez pleaded nolo contendré to two counts of committing a lewd act upon a child in violation of Section 288(a) of the California Penal Code. In January 2009, she was returning from abroad and was paroled
At the removal hearing, the IJ found Negrete-Ramirez removable as charged. When she informed the IJ that she would apply for relief in the form of cancellation of removal under 8 U.S.C. § 1229b, the IJ held that her conviction was for an aggravated felony, and she was ineligible for cancellation of removal. Negrete-Ramirez
On remand, Negrete-Ramirez made a motion to the IJ to calendar proceedings to allow her to apply for a § 212(h) waiver. A § 212(h) waiver is granted at the discretion of the Attorney General to aliens whose inadmissibility is based on certain criteria. The IJ calendared a hearing for her § 212(h) waiver application. At the hearing, the IJ determined that she was not eligible to apply for the § 212(h) waiver because of her aggravated felony conviction following her adjustment of status to an LPR. Matter of Juana Negrete Ramirez, A79 355 559 (Oct. 22, 2009). Neg-rete-Ramirez appealed the decision to the BIA. The BIA found her ineligible to apply for the § 212(h) waiver due to her aggravated felony because she was “ ‘admitted’ to the United States when she adjusted her status in 2002” and affirmed the IJ’s order. Matter of Juana Negrete-Ramirez, A079 355 559 (BIA Apr. 21, 2010).
II.
The issue before us is whether a noncitizen, who is admitted to the United States on a visitor visa and later adjusts her status to a lawfully admitted permanent resident without leaving the United States, qualifies under 8 U.S.C. § 1182(h) as “an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence,” and, therefore, is ineligible to apply for a § 212(h) waiver.
We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to review the legal question of whether Negrete-Ramirez is statutorily eligible to apply for a § 212(h) waiver. De novo review of a statutory construction begins with the text of the statute. See, e.g., Hing Sum v. Holder,
III.
If "Congress has directly spoken to the precise question at issue,” the Court “must give effect to the unambiguously expressed intent of Congress.” Chevron,
Circuits. The relevant text governing the § 212(h) waiver is as
follows: [n]o waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully ad- mitted for permanent residence if [] since the date of such admission*1051 alien has been convicted of an aggravated felony....
INA § 212(h), 8 U.S.C. § 1182(h) (emphasis added). As the Ninth Circuit observed in its analysis of this exact text, it “is divisible into two distinct phrases: namely, (1) ‘an alien who has previously been admitted to the United States’ and (2) ‘as an alien lawfully admitted for permanent residence.’ ” Sum,
1. 8 U.S.C. § 1101(a)(13)(A): “Admitted” and “Admission”
The statute defines “admitted” and “admission” as “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” 8 U.S.C. § 1101(a)(13)(A) (emphasis added). Applying the “ordinary, contemporary, common meaning” of this definition’s terms reveals that it is limited and does not encompass a post-entry adjustment of status. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship,
The government urges the Court to adopt a definition of “admitted” that includes post-entry adjustment of status to an LPR. In support of its argument, the government cites three Ninth Circuit cases that interpret “admission” and “admitted” as used in specific sections of the INA to include adjustment of status. None of the cases involve a departure from the statute’s plain language definition of “admitted” as used in § 212(h). And none of the cases involve statutory language that is divisible into two distinct phrases, each with its own term of art, like that in § 212(h).
The first case, Cuevas-Gaspar v. Gonzales,
The other two cases cited by the government fare only slightly better. In Ocampo-Duran v. Ashcroft,
Similar to Ocampo-Duran, in Garcia-Quintero v. Gonzales,
Although the cases cited by the government “embrace[ ] an alternative construction of the term [admitted],” they are consistent with our prior “recognition] [of] section 101(a)(13)(A) as the primary, controlling definition of the statutory term.” Shivaraman,
Because Negrete-Ramirez was ad: mitted into the United States as defined by 8 U.S.C. § 1101(a)(13)(A), this specific statutory definition is not “plainly inapplicable” to her case. It was this fact in Shivaraman,
We note that the government also relies on BIA decisions. Because there is no ambiguity in the statutory text, we need not examine these agency decisions. See, e.g., Barnhart,
2. 8 U.S.C. § 1101(a)(20): “Lawfully Admitted for Permanent Residence”
The second distinct phrase in the text of § 212(h) contains the statutorily defined term “lawfully admitted for permanent residence.” The term is defined as “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.” 8 U.S.C. § 1101(a)(20). This term encompasses all LPRs, regardless of whether they obtained that status prior to or'at the time they physically entered the United States or by adjusting their status while already living in the United States, like Negrete-Ra-mirez.
3. Statutory Language of § 212(h) as a Whole
When reading the statutory language of § 212(h) — “previously been admitted .. ■: as an alien lawfully admitted for permanent residence” — against the definitions section of the INA, the two terms qualify each other. It is unambiguous that Congress defined the class of those who are barred from seeking a § 212(h) waiver as LPRs who obtained their status prior to or at the time they physically entered into the United States. Papazoglou,
Our sister Circuits have opined as to the rational explanations for why Congress might have chosen to limit the bar on eligibility for certain LPRs and not others. See, e.g., Lanier,
IV.
Section 212(h) of the INA expressly incorporates the terms of art “admitted” and “lawfully admitted for permanent residence” as defined by 8 U.S.C. § 1101(a)(13) and (20). Accordingly, the plain language of § 212(h) unambiguously demonstrates that Negrete-Ramirez’s post-entry adjustment of status to an LPR after her admission to the United States as a visitor does not constitute an admission in the context of § 212(h). Only nonciti-zens who entered into the United States as LPRs are barred from eligibility to apply for the § 212(h) waiver. Negrete-Ra-mirez is not barred from applying for a § 212(h) waiver.
We grant the petition for review and remand this matter to the BIA with instructions to remand to the IJ so that Negrete-Ramirez may apply for relief under § 212(h).
PETITION FOR REVIEW GRANTED. REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
Notes
. "An alien who is paroled ... shall not be considered to have been admitted.” 8 U.S.C. § 1101(a)(13)(B) (defining "admission” and “admitted”).
. In Sum, the issue before the Ninth Circuit was whether the petitioner, who was admitted into the United States at a point of entry by misrepresenting his status as a lawful permanent resident, was eligible to apply for a § 212(h) waiver. The Court held that the definition of "admitted” under the INA referred to a procedurally lawful entry rather than a substantively lawful entry. As a result, petitioner's admission at the point of entry into the United States was as an LPR; therefore, he was ineligible to apply for a § 212(h) waiver. Sum,
Concurrence Opinion
concurring:
Although I concur in the majority opinion, some comment on the Board of Immigration Appeals’ (“BIA”) precedential opinions affecting the interpretation of section 212(h) of Immigration and Nationalities Act (“INA”) is in order. See In re Rodriguez, 25 I. & N. Dec. 784 (BIA 2012); In re Alyazji, 25 I. & N. Dec. 397 (BIA 2011); In re Koljenovic, 25 I & N Dec. 219 (BIA 2010); In re Rosas-Ramirez, 22 I. & N. Dec. 616 (BIA 1999).
The overall premise of those opinions is that the plain language approach to the incorporation of the definition of “admission” and “admitted” in INA section 101(a)(13) cannot suffice, both in general and with regard to the section 212(h) waiver. The BIA stresses that the INA elsewhere provides for the assimilation of adjustment of status to admission,
This point has considerable force, and I was initially inclined to defer to it, as an acceptable interpretation of the INA as a whole and therefore of the section 212(h) waiver. On reflection, however — and given the uniform holdings to the contrary of every federal Court of Appeals that has addressed the question — I am persuaded by the majority’s overall approach, which I take to be essentially this:
We must apply a plain words interpretation to the statutory definition of “admission” and “admitted” in the INA when we can sensibly do so. In this case, the juxtaposition of the statutorily defined term, “admitted,” INA § 101(a)(13), with a second such term, “lawfully admitted for permanent residence,” id. § 101(a)(20), particularly requires a plain words approach to the first term; otherwise, the term “admitted” would be redundant of the second phrase. In some instances, however, such as where there has been no admission of the sort contemplated by the statute, yet the context requires some trigger date by which to measure a later event, or where the result of treating an adjustment of status as if there had been no admission would be absurd, adjustment of status must be treated as admission. See Maj. Op. at pp. 1052-53.
This nuanced approach now seems to me more faithful to the appropriate division of responsibility between Congress and administrative agencies, and between such agencies and the courts, embodied in Chevron, U.S.A., Inc. v. NRDC, Inc.,
It is also worth pointing out that some of the anomalies that the BIA’s cases suggest arise unless adjustment of status is considered admission for all INA purposes do not, in fact, exist.
For example, Alyazji suggests that if an adjustment of status does not constitute an admission, many immigrants who currently seek waivers under section 212(h) would no longer be eligible to do so. See Alyazji, 25 I. & N. Dec. at 403. Alyazji points out that section 212(h)(1)(B) “permit[s] the Attorney General to waive the application of various grounds of inadmissibility if a ‘denial of admission’ ... would result in extreme hardship to the alien’s close rela
if adjustment of status is not an “admission” for previously admitted aliens, .... then such aliens would seem to be ineligible for waivers in- the adjustment context, since any prospective hardship befalling their family members would no longer be attributable to a denial or refusal of “admission.” Meanwhile, aliens who seek adjustment after having entered the - United States unlawfully would remain eligible for waivers because, for them, adjustment of status would still be an admission.
Id. (emphasis in original).
The BIA’s concern is unjustified. Section 212(h) applies only to aliens who are “inadmissible” or “ineligible to receive visas” due to criminal activity. See INA § 212(a)(2). To be eligible for adjustment of status, an alien must ordinarily be admissible, and must receive a visa. See, e.g., id. § 245(a). And any ambiguity that may be created by reference to “the alien’s denial of admission[,]” id. § 212(h)(1)(B), in the waiver section is cleared up (1) by the reference to “an alien lawfully admitted for permanent residence” in. the same sentence as eligible for a waiver — defined in section 101(a)(20) as a status separate from actual admission at the border; and (2) the explicit permission in the next sentence to the-Attorney General to consent to “admission to the United States, or adjustment of status[,T id. § 212(h)(2) (emphasis added). Indeed, the inclusion of both terms, separately, within section 212(h)(2) belies the notion that the first, admission, always includes the second, adjustment, and indicates, instead, that it at least sometimes does not.
Koljenovic similarly asserts that if adjustment of status is not treated as an “admission,” an alien who enters without inspection and later adjusts status “would be in the absurd position of being a lawful permanent resident without ever having been ‘admitted’ in that status and thus could be subject to inadmissibility under section 212(a)(6)(A)® of the Act[,]” Kolje-novic, 25 I. & N. Dec. at 222, as an “alien present in the United States without being admitted or paroled,” INA § 212(a)(6)(A)®. Thus, “many lawful permanent residents would be considered inadmissible, despite their lawful status, based on their presence in the United States without having been admitted.” Al-yazji, 25 I. & N. Dec. at 399. But individuals whose status has been adjusted are assigned a constructive date of lawful admission for permanent residence. See INA § 245(b). And section 237(a)(1)(A) explicitly treats as deportable an alien inadmissible “at the time of entry or adjustment of status,” clearing .up any ambiguity about whether aliens who have adjusted status are to be treated as if they were at the border seeking admission for purposes of the removal statutes. Id. § 237(a)(1)(A) (emphasis added). So, once again, where a literal interpretation of “admission” might lead to absurdities, the statute mentions “adjustment” specifically, and so signals that in the particular context, adjustment is to be assimilated to adjustment. See also Ocampo-Duran v. Ashcroft,
Finally, I disagree with the BIA that, under this Court’s interpretation, an alien who adjusts status without having previously been admitted would be ineligible for cancellation of removal. See Alyazji, 25 I. & N. Dec. at 399 n. 2. The Attorney Gener
Our interpretation does not require this result. This is precisely the situation identified above: there has been no admission of the type envisioned by section 101(a)(13)(A), but the INA requires a trigger date by which to measure the 7 years of continuous residence. In that context, the date of an adjustment of status may be used as a date of admission.
For these reasons, I find the majority’s approach more likely to lead to results consistent with Congress’ overall intent in this complicated and oft-amended statute, and view the anomalies identified by the BIA as overblown. I therefore concur.
. See, e.g., INA § 101(a)(20) (designating those who have adjusted status as having been "lawfully admitted for permanent residence”) (emphasis added); id. §§ 245(a), (i) (authorizing the Attorney General to adjust the status of certain aliens "to that of an alien lawfully admitted for permanent residence” as long as they are "admissible" or have received a waiver of inadmissibility) (emphasis added); id. § 245(b) (requiring the Attorney General, having adjusted an alien’s status to that of a permanent resident, to "record the