After Jose Martinez was convicted of bank fraud, in violation of 18 U.S.C. § 1344, the United States sought to remove him, pursuant to § 237(a)(2)(A)(iii) of the Immigration and Nationality Act (INA), as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). 8 U.S.C. § 1227(a)(2)(A)(Hi). Ruling the bank-fraud conviction constitutes an aggravated felony, the immigration judge (IJ) sustained the removability charge and denied Martinez statutory eligibility for a waiver of inadmissibility. Both on direct appeal and in denying a joint motion to reconsider, the Board of Immigration Appeals (BIA) agreed with the IJ. Martinez maintains: his bank-fraud conviction is not an aggravated felony; and, in the alternative, he is eligible to seek a discretionary waiver of inadmissibility. DENIED IN PART; GRANTED IN PART; REMANDED.
I.
Born in Argentina, Martinez, at age twelve, was admitted to the United States as a non-immigrant visitor in 1980. Ten years after that admission (entry), he adjusted his status, under amnesty provisions of INA § 245A, to that of a lawful permanent resident. Martinez married an American citizen, in 2000, by whom he has two children.
Both before and after he became married, Martinez worked as an accounts-receivable clerk at a real-estate management firm in New York. In that employment, Martinez illegally took checks and money orders, altered the payees, and deposited the instruments in personal accounts he maintained. Martinez both withdrew, and wrote checks against, those funds.
In June 2001, when his criminal actions were discovered, Martinez pleaded guilty in New York district court to one count of bank fraud, in violation of 18 U.S.C. § 1344. He was sentenced that December to serve five months in prison, followed by five months of home detention and supervised release. Martinez was also ordered to pay approximately $313,000 in restitution.
After Martinez served his five-month prison term (but before he served any of his home detention), Customs officials took him into custody and instituted removal proceedings. The requested removal was premised on the assertion that Martinez had committed an aggravated felony, as defined by INA § 101(a)(43)(M)(i), and was therefore removable under INA § 237(a)(2)(A)(Hi). The INA has numerous definitions for what constitutes an “aggravated felony”. One is found in the above-referenced subsection (a)(43)(M)(i): an aggravated felony is an offense involv *537 ing “fraud or deceit in which the loss to the victim or victims exceeds $10,000”. 8 U.S.C. § 1101(a)(43)(M)(i). (Martinez does not contest that the loss exceeded $10,000.)
Martinez was transferred to a detention facility in Oakdale, Louisiana, for removal proceedings. There, an IJ held a hearing on removal vel non.
In February 2003, the IJ sustained removability, on the basis that Martinez had been convicted of an “aggravated felony”. It ruled: “By the very terms of [18 U.S.C. § 1344], fraud is an element of the offense.”
The IJ also ruled Martinez was ineligible to seek relief under INA § 212(h). It allows the Attorney General, in his discretion, to waive certain enumerated criminal grounds for inadmissibility for qualifying aliens. 8 U.S.C. § 1182(h). (Receiving that waiver would enable Martinez to seek to obtain adjustment of status as the spouse of a United States citizen under INA § 245.)
Concerning § 212(h), the IJ ruled that Martinez’ underlying conviction’s being an aggravated felony precluded a waiver of inadmissibility. In that regard, the IJ rejected Martinez’ contention that the statutory bar for § 212(h) relief did not apply, finding In re Rosas-Ramirez, 22 I. & N. Dec. 616 (BIA 1999) (en banc), controlling.
The IJ also rejected Martinez’ claim to United States nationality pursuant to his voluntary registration in 1987 for military service in this country. Conceding the nationality issue is foreclosed, Martinez does not raise it here.
In July 2003, by a brief opinion, the BIA agreed with the IJ’s ruling that Martinez’ § 1344 conviction constituted an aggravated felony. The BIA also found In re Rosas controlling on eligibility vel non for the § 212(h) waiver of inadmissibility.
Following the BIA decision, instead of filing a petition for review to this court, Martinez applied for habeas relief in New York district court, pursuant to 28 U.S.C. § 2241. Martinez v. Ashcroft, No. 03-CV-4328 (E.D.N.Y.2003). After briefing and oral argument, however, the parties submitted a joint motion for reconsideration to the BIA. (It is not clear why the parties jointly sought reconsideration; the record and Martinez’ counsel at oral argument here suggest the original BIA decision insufficiently addressed the presented issues.) As a result, this matter was remanded to the BIA, and Martinez was released from the Oakdale facility pending removal.
In April 2004, the BIA denied reconsideration, concluding that neither party “identified additional legal arguments, a change in the law or an argument or aspect of the case that was overlooked”. Nevertheless, the BIA also reaffirmed, in far greater detail, its previous aggravated-felony determination and rejection of § 212(h) eligibility. (This greater detail may have resulted from the Government’s joining Martinez’ motion to reconsider.)
Following the BIA’s second ruling, Martinez’ New York district-court habeas application was not acted on until 31 May 2005, when his application was transferred to the Second Circuit, pursuant to § 106(c) of the REAL ID Act, Pub.L. No. 109-13, § 106(c), 119 Stat. 231, 310-11 (2005). In November 2005, the Second Circuit granted the Government’s motion to transfer this matter to our court.
II.
Under REAL ID Act § 106(c), because Martinez’ habeas application was pending on 11 May 2005, it is treated as a timely petition for review of the BIA’s order, without the jurisdictional 30-day period for filing such petitions.
*538 [A]ll collateral proceedings pending on May 11, 2005, when the REAL ID Act took effect, and transferred to courts of appeals under § 106(c), must be treated as timely petitions for review, no matter how long it has been since the Board rendered its decision. Collateral proceedings filed on or after May 11, however, will be dismissed outright; the window for belated judicial review has closed.
Medellin-Reyes v. Gonzales,
Martinez presents two alternative bases why he should be granted relief: he is not removable because his bank-fraud conviction is not an aggravated felony, as that term is defined under INA § 101(a)(43); and he is eligible to seek a discretionary waiver of inadmissibility under INA § 212(h). As discussed
infra,
because both issues present questions of law, our review is
de novo. E.g., Ramirez-Molina v. Ziglar,
A.
The BIA ruled Martinez removable for committing an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii). The REAL ID Act amended 8 U.S.C. § 1252(a)(2)(C) to
preclude judicial review
of any removal order based,
inter alia,
on an alien’s commission of an aggravated felony. 8 U.S.C. 1252(a)(2)(C);
Hernandez-Castillo v. Moore,
Martinez presents a question of law: whether his 18 U.S.C. § 1344 bank-fraud conviction was an aggravated felony, as defined by INA § 101(a)(43). Therefore, we are limited initially to determining our jurisdiction; in doing so, we are limited to deciding whether the conviction was an aggravated felony under the INA.
James v. Gonzales,
In determining whether Martinez’ prior conviction falls within the INA’s definition of aggravated felony, we first accord substantial deference, if warranted, to the BIA’s interpretation of the INA.
Omari v. Gonzales,
1.
In his opening and reply briefs here, Martinez contended: because bank fraud does not require proof of two common-law elements of fraud—reliance and damage—his bank-fraud conviction is not an offense “involv[ing] fraud or deceit”, as required to constitute an aggravated felony under INA § 101 (a)(43)(M)(i) (subsection (M)(i)). This assertion, as Martinez’ counsel conceded at oral argument here, is foreclosed by our court’s following decision, rendered after briefing was complet
*539
ed:
James,
2.
Alternatively, Martinez maintains: even with, under James, bank fraud’s meeting the definition of aggravated felony as defined by subsection (M)(i), it also contains elements of theft, making it a “hybrid” offense. Therefore, Martinez asserts, in addition to the elements contained in subsection (M)(i), there must be proof of the elements in INA § 101(a)(43)(G) (subsection (G)), another aggravated-felony definition.
Subsection (G) defines an aggravated felony as “a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year”. 8 U.S.C. § 1101(a)(43)(G) (emphasis added). According to Martinez, because bank fraud is a hybrid offense, his bank-fraud conviction cannot be an aggravated felony because he was sentenced to less than the year in prison required by subsection (G).
Martinez’ hybrid-offense theory is premised on
Nugent v. Ashcroft,
The Third Circuit agreed subsection (G) was satisfied. Id. at 174. The court did not stop there, however: “If we decide that Nugent’s conviction is ‘an offense that involves fraud or deceit’ as well as ‘a theft offense,’ then to qualify as an aggravated felony under the INA it must [also] meet the requirements of [subsection (M)(i)]”. Id. at 174-75. The court held: “theft by deception” also involved “fraud or deceit”; and the alien’s conviction under that statute could not meet the “aggravated felony” standard, because the victim’s loss did not exceed $10,000, as required by subsection (M)(i). Id. at 179. Nugent’s hybrid-offense holding was premised on the following polysyllogism (as defined at id. at 177 n. 4):
Depriving another of property by fraud or deceit is an offense ([subsection] M). The offense of theft by deception deprives another of property by theft ([subsection] G).
Therefore, the offense of theft by deception is an offense under [subsections] (M) and (G).
* :¡{ í¡í sfc #
The offense of theft by deception is an offense under [subsections] (M) and (G). A violation of Pennsylvania’s theft by deception statute ... is an offense of theft by deception.
Therefore, a violation of Pennsylvania’s theft by deception statute ... is an offense under (M) and (G)
Id. at 177 (asterisks in original).
Martinez urges our adopting this reasoning. (In the light of James, this is his only remaining basis for challenging being classified as an aggravated felon.) He asserted this hybrid-offense theory before the BIA on direct appeal and on motion to reconsider. It did not address it in either instance.
Our court has not decided whether an offense may properly be characterized as a hybrid fraud/theft offense, which must meet the requirements of both subsections (G) and (M)(i).
See Omari,
As stated, pursuant to
James,
Martinez’ § 1344 conviction involves “fraud or deceit”. Therefore, in assessing whether he committed an aggravated felony under a hybrid-offense theory, we must determine whether his § 1344 offense also constitutes a theft offense under subsection (G). In doing so, we employ the categorical approach provided in
Taylor v. United States,
“Theft” is not defined by the INA; nor has the BIA done so. As a result, we apply its commonly understood legal meaning.
See James,
Viewing the text of the § 1344 bank-fraud statute in the light of this definition, it is not a “theft offense” under subsection (G). Section 1344 provides:
Whoever knowingly executes, or attempts to execute, as scheme or artifice—
(1) to defraud a financial institution; or
(2) to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses, or promises;
shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.
18 U.S.C. § 1344 (emphasis added).
Applying the categorical approach, neither of the two prongs of § 1344, by its terms, requires property being obtained without the owner’s (financial institution’s) consent — -a critical element, as stated above, of a theft offense.
See also Soliman v. Gonzales,
Indeed, § 1344 applies to situations in which a financial institution voluntarily consents to giving the perpetrator “mon
*541
eys, funds, credits, assets, securities, or other property”, as a result of fraud.
See, e.g., United States v. Frydenlund,
Moreover, on a common-sense level, it is well to remember that Martinez was not charged with the theft (i.e., the taking (caption) and carrying away (asportation)) of the funds he unlawfully obtained through his employment; he was charged, instead, with fraudulently obtaining such funds from a financial institution, under a statute that is materially the same as many other fraud statutes. Accordingly, in the light of our circuit’s definitions of the terms, and again assuming arguendo we would apply the hybrid-offense theory, a § 1344 bank-fraud offense would not be a hybrid fraud/theft offense.
This is consistent with Congressional intent.
See Soliman,
Martinez’ bank-fraud conviction is an aggravated felony for purposes of the INA. Therefore, we lack jurisdiction to review the removal order.
B.
For his alternative legal issue, Martinez contends: contrary to the two BIA decisions, he is eligible to seek a discretionary waiver of inadmissibility (based on hardship) from the Attorney General under INA § 212(h). Although we are without jurisdiction “to review a decision of the Attorney General to grant or deny a [§ 212(h)] waiver”, 8 U.S.C. § 1182(h), our court has jurisdiction, as discussed supra, to review the question of law presented by Martinez’ challenge to the BIA’s construction of § 212(h). 8 U.S.C. § 1252(a)(2)(D) (permitting review of questions of law notwithstanding review being otherwise barred under 8 U.S.C. §§ 1182(h) and 1252(a)(2)(B)® & (Q).
In this instance, the term “waiver of inadmissibility” is a misnomer, to say the least. On its face, it would appear that § 212(h) applies only to those aliens seeking admission (entry) into the United States, not those, like Martinez, who are already here. In practice, however, quali
*542
fying
removable
aliens may also obtain such waivers.
See Flores-Ledezma v. Gonzales,
The heart of Martinez’ claim to being able to seek a § 212(h) waiver focuses on language in the statute, as amended by IIRIRA § 348: aliens are not eligible for the waiver if they have “previously been admitted to the United States as an alien lawfully admitted for permanent residence [ie., an LPR] if ... since the date of such admission the alien has been convicted of an aggravated felony”. 8 U.S.C. § 1182(h) (emphasis added). Martinez contends: assuming arguendo his bank-fraud conviction constitutes an aggravated felony (as held supra, it does), he is eligible for the § 212(h) waiver because he was not admitted as an LPR, as the statute requires; instead, he was adjusted to LPR status ten years after his admission (entry) into the United States. Such LPR “adjustment”, Martinez claims, does not constitute prior “admission” as an LPR for purposes of § 212(h).
Again, in ruling Martinez ineligible for a § 212(h) waiver, the BIA ruled In re Rosas-Ramirez, 22 I. & N. Dec. 616 (BIA 1999) (en banc), is controlling. In Rosas, the BIA considered whether an alien who had entered without inspection, and was later adjusted to LPR status, could be subject to removal proceedings under INA § 237(a)(2)(A)(iii), based on a subsequent aggravated-felony conviction. Rosas, 22 I. & N. Dec. at 617-619. That subsection states: “Any alien who is convicted of an aggravated felony at any time after admission is deportable”. 8 U.S.C. § 1227(a)(2)(A)(iii) (emphasis added).
As noted, the alien had committed the offense after adjusting to LPR status. Rejecting the assertion that such an alien, as an LPR, had somehow acquired immunity from removal, the BIA held aliens who obtained LPR status through adjustment were considered to have accomplished “admission” for purposes of that aggravated-felony removal provision. Rosas, 22 I. & N. Dec. at 619. Notably, however, the BIA did not address whether this interpretation of “admission” applied in the context of waivers of inadmissibility under § 212(h). In fact, the BIA stated it was not “attempt[ing] to resolve the meaning of ‘admission’ in other contexts or under other provisions for adjustment of status”. Rosas, 22 I. & N. at 623 n. 5.
The Government urges our deferring to this interpretation, as applied by the BIA in this case, of “admission” in the context of § 212(h) waivers. In general, our
de novo
review is restrained by our “according] substantial deference to the BIA’s interpretation of the INA ... and definitions of phrases within it”.
Omari,
Under
Chevron,
we defer to agency interpretations of
ambiguous
statutes.
Chevron,
Therefore, under the
Chevron-framework,
we first determine “whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress”.
Id.
at 842-43,
In contending we must afford substantial deference to the BIA’s interpretation of the term “admission” in § 212(h), the Government cites only our decision in
Omari.
Under
Chevron’s
above-described threshold question, if we conclude Congress spoke directly on the issue, we do
not
accord deference to the administrative interpretation.
See Cardoza-Fonseca,
In determining whether Congressional intent is clear (and, therefore, deference’s not being accorded the agency), we, of course, look first and foremost to the language of the statute.
E.g., Conn. Nat’l Bank v. Germain,
Section 212(h), the provision at issue regarding waivers of inadmissibility, states in relevant part:
No 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 admitted for permanent residence if ... since the date of such admission the alien has been convicted of an aggravated felony
8 U.S.C. § 1182(h) (emphasis added). For determining ambiguity vel non, if this stat *544 utory text stood alone, we would define “admitted” by its ordinary, contemporary, and common meaning, as discussed supra. Congress has relieved us from this task, however, by providing the following definition: “The terms ‘admission’ and ‘admitted’ mean, with respect to an alien, 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). Under this statutory definition, “admission” is the lawful entry of an alien after inspection, something quite different, obviously, from post-entry adjustment of status, as done by Martinez.
With this definition in mind, the plain language of § 212(h) reveals that “admitted”, as employed in § 212(h), includes an alien’s lawful entry into this country with permanent-resident status. Stated differently, for the § 212(h) bar to apply: when the alien is granted permission, after inspection, to enter the United States, he must then be admitted as an LPR. Accordingly, we find no basis for the statutory language’s being ambiguous. Again, this is based, in part, on Congress’ having defined “admitted”.
Our holding there is no ambiguity in the term “admitted” is consistent with the application of traditional statutory-construction rules, which we are instructed to use in determining whether Congressional intent is clear before deferring to an administrative interpretation.
See, e.g., EEOC v. Arabian Am. Oil Co.,
Here, defining “admitted”, as used in § 212(h), to
exclude
adjustment to LPR status subsequent to entry, as was done by Martinez, is bolstered by the “longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien”.
Cardoza-Fonseca,
Conceding that § 212(h)’s plain language might yield the result Martinez seeks, the Government contends we should nevertheless hold “admitted” includes post-entry “adjustment” to LPR status.
See Bellum v. PCE Constructors, Inc.,
*545
As Martinez points out, Congress may well have been taking a “rational first step toward achieving the legitimate goal of quickly removing aliens who commit certain serious crimes from the country”.
Lara-Ruiz,
This rational basis for the distinction in § 212(h) between aliens who entered the United States as LPRs and those who adjusted to that status post-entry is supported by the fact that, subsequent to IIRIRA’s passage, the “Immigration Technical Corrections Act of 1997”, H.R. 2413, attempted to amend INA § 101(a)(13) (defining “admission” and “admitted”) to include aliens, like Martinez, who had adjusted to LPR status subsequent to being admitted to the United States (to entering this country). This amendment, which demonstrated at least some in Congress felt “admitted” did not include post-entry status “adjustment”, was not enacted, perhaps out of recognition that limited enforcement resources should be devoted to attacking the problem in stages.
Moreover, as Martinez also points out, Congress might rationally have concluded that adjusted-to-LPR-status aliens like him are more deserving of being eligible for a waiver of inadmissibility. Martinez entered the United States as a minor, grew up in this country, and developed ties here. He also went through the scrutiny of adjustment, in which his record in the United States was examined. Congress could have concluded rationally that individuals such as Martinez are more deserving, than those who entered as LPRs, of being eligible for the § 212(h) waiver, including likely having more citizen relatives who would be affected adversely by removal.
Of course, it is irrelevant whether Congress made this distinction — between those who entered as an LPR and those who adjusted post-entry to LPR status— based on the “incremental approach”, or because it thought candidates such as Martinez more deserving. What is relevant is that there are countervailing explanations for the statutory distinction between “admitted” and “adjustment”, which are just as plausible, if not more so, than the Government’s contention that such a reading would lead to an absurd result. Therefore, we are not at liberty to override the plain, unambiguous text of INA §§ 212(h) and 101(a)(13).
The Government, for the first time at oral argument, suggested that INA §§ 245 and 245A (governing adjustment to LPR status) support the proposition that, when an alien is granted LPR status, he is deemed “admitted” for purposes of § 212(h). For obvious reasons, we generally do not consider contentions raised for the first time at oral argument. This prudential practice is consistent with a party’s waiving a contention because of inadequate *546 briefing. United States v. Le, 512 F.3d 128, 132 n. 2 (5th Cir.2007).
In our discretion, because this is a question of law involving statutory construction, we will consider it. We find no basis in the text of §§ 245 or 245A for this contention. See 8 U.S.C. §§ 1255 & 1255a. Sections 245 and 245A provide the requirements for adjustment to LPR status. “Adjustment” is the procedure by which an alien becomes a LPR without having to first leave the country, as is the case with consular processing. Richard D. Steel, Steel on Immigration Law § 7.1 (2d ed.1992, 2007 Supp.). Contrary to the Government’s contention at oral argument, these statutes do not provide that adjustment constitutes being “admitted” for the purpose of determining eligibility for a waiver under § 212(h).
To the extent the Government asserts that the existence of the term “lawfully admitted for permanent residence” in those two sections controls our analysis, it is mistaken. That term, “lawfully admitted for permanent residence”, is an entirely separate term of art defined at § 101(a)(20), which does in fact encompass both admission to the United States as a LPR and post-entry adjustment to LPR status. Section 212(h), however, expressly incorporates that term of art (“lawfully admitted for permanent residence”), as defined by § 101(a)(20), separate and apart from its use of “admitted”, as defined by § 101(a)(13). To illustrate, § 212(h) only denies waivers of eligibility to those aliens who have “previously been admitted [§ 101(a)(13)] to the United States as an alien lawfully admitted for permanent residence [§ 101(a)(20)]” (emphasis added).
Accordingly, we hold: for aliens who adjust post-entry to LPR status, § 212(h)’s plain language demonstrates unambiguously Congress’ intent
not
to bar them from
seeking
a waiver of inadmissibility. Because we must give effect to that intent, we proceed no further in the
Chevron
inquiry.
Waggoner v. Gonzales,
III.
For the foregoing reasons, the petition is DENIED in part and GRANTED in part. Accordingly, this matter is REMANDED to the BIA for further proceedings consistent with this opinion.