Matter of Giovanny RIVAS, Respondent
U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals
Decided June 20, 2013
26 I&N Dec. 130 (BIA 2013) | Interim Decision #3783
FOR RESPONDENT: Claudia Del Castillo-Hronsky, Esquire, Miami, Florida
FOR THE DEPARTMENT OF HOMELAND SECURITY: Adam Weisholtz, Assistant Chief Counsel
BEFORE: Board Panel: GRANT, MALPHRUS, and MULLANE, Board Members.
GRANT, Board Member:
In a decision dated June 4, 2009, an Immigration Judge found the respondent removable and granted his request for a waiver under section 212(h) of the Immigration and Nationality Act,
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Colombia who was admitted to the United States as a lawful permanent resident on August 11, 1998. On January 22, 2001, he was convicted of petit larceny in Florida. He was convicted of the same offense on July 3, 2001.
At a hearing before the Immigration Judge, the respondent conceded that he is removable under section 237(a)(2)(A)(ii) of the Act,
II. ANALYSIS
The Immigration Judge erred in granting the respondent a nunc pro tunc section 212(h) waiver on a “stand alone” basis, that is, without a concurrently filed adjustment application. The respondent is statutorily ineligible for the waiver because he is neither an arriving alien seeking to waive a ground of inadmissibility nor one seeking to waive inadmissibility in conjunction with an application for adjustment of status. See section 212(h) of the Act;
The Immigration Judge relied on Matter of Sanchez, finding that the respondent, like the alien in that case, was not inadmissible at the time of his original entry but became inadmissible when he left the United States after being convicted and later returned. Because the respondent was not eligible for adjustment of status, the Immigration Judge granted the waiver nunc pro tunc.
The respondent‘s situation is different from that of the alien in Sanchez because he does not have a pending application for adjustment of status. See id. at 219–20, 224. In any case, subsequent to our decision in Matter of Sanchez, section 212(h) was amended in pertinent part by section 601(d)(4) of the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, 5076–77 (effective June 1, 1991). Prior to the amendment, section 212(h) provided a waiver for certain exclusion grounds where the “Attorney General . . . has consented to the alien‘s applying or reapplying for a visa and for admission to the United States.” Section 212(h) of the Act,
Our long-standing approach to defining the limits of section 212(h) relief has been affirmed by the courts of appeals as a reasonable construction of the statutory provisions. See, e.g., Cabral v. Holder, 632 F.3d 886 (5th Cir. 2011); Klementanovsky v. Gonzales, 501 F.3d 788 (7th Cir. 2007); Osuchukwu v. INS, 744 F.2d 1136, 1139 n.7 (5th Cir. 1984) (citing Matter of Bernabella, 13 I&N Dec. 42 (BIA 1968)). Most recently, the United States Court of Appeals for the Eleventh Circuit held that a section 212(h) “stand-alone” waiver is not available to an alien in removal proceedings. Poveda v. U.S. Att‘y Gen., 692 F.3d 1168, 1177 (11th Cir. 2012) (stating that a lawful permanent resident may obtain a waiver “only if he is an applicant for admission or assimilated to the position of an applicant for admission by applying for an adjustment of status“). We conclude that the statute does not provide for an alien in removal proceedings to obtain a “stand alone” waiver without an application for adjustment of status.
In Matter of L-, 1 I&N Dec. 1 (BIA, A.G. 1940), it was determined that discretion could be exercised nunc pro tunc to place an alien back into the position of an arriving alien where his previous crime had made him inadmissible prior to his travels abroad and return to the United States. The Attorney General reasoned that the respondent should have been afforded the opportunity to apply for a discretionary waiver in deportation proceedings because relief would have been available in exclusion proceedings had immigration officials considered the unconcealed evidence of the respondent‘s prior conviction upon his reentry. Id. at 5–6.
However, the Supreme Court found that this approach also created a peculiar “asymmetry” because “[d]eportable aliens who had traveled abroad and returned could receive § 212(c) relief, while those who had never left could not.” Judulang v. Holder, 132 S. Ct. 476, 480 (2011). Thus, granting nunc pro tunc relief was not just a mere “correction of a record of entry,” Matter of L-, 1 I&N Dec. at 6, but rather was a violation of equal protection. Judulang v. Holder, 132 S. Ct. at 480 (citing Francis v. INS, 532 F.2d 268 (2d Cir. 1976)); Matter of Silva, 16 I&N Dec. 26 (BIA 1976).
While nunc pro tunc relief has been found to be available to grant certain waiver applications, it should only rarely be employed to fill a “gap” in statutory criteria. The Act, as it has been revised in recent years, is far more precise regarding the eligibility criteria for a section 212(h) waiver. The argument against extending nunc pro tunc relief is therefore especially strong where, as in this case, the claimed inequality of treatment for different aliens convicted of the same offense is “inherent in the statutory
Furthermore, we agree with the Eleventh Circuit‘s conclusion that after the amendments to section 212(h), eligibility for a waiver does not turn on a criminal alien‘s “international travel,” but rather on whether he seeks admission to the United States or the DHS seeks to remove him. Poveda v. U.S. Att‘y Gen., 692 F.3d at 1177. As the court noted, “After 1996, a lawful permanent resident may obtain the waiver only if he is an applicant for admission or assimilated to the position of an applicant for admission by applying for an adjustment of status.” Id. As a general rule, the only way that an alien seeking section 212(h) relief in removal proceedings can be “assimilated to the position of an alien outside the United States” is to concurrently apply for adjustment of status. Cabral v. Holder, 632 F.3d 887, 891 (5th Cir. 2011) (quoting Jankowski-Burczyk v. INS, 291 F.3d 172, 175 n.2 (2d Cir. 2002)) (internal quotation marks omitted).
As both the Seventh and Eleventh Circuits have determined, Congress could rationally distinguish between aliens who seek to be readmitted to the United States, such as the alien in Matter of Abosi, and those, like the respondent, who are in the country following a lawful admission but who are removable because they subsequently violated our criminal laws. Poveda v. U.S. Att‘y Gen., 692 F.3d at 1177–78; Klementanovsky v. Gonzales, 501 F.3d at 792-93; Moore v. Ashcroft, 251 F.3d at 925. By amending the statute, Congress intended to require aliens in removal proceedings in the United States to apply for adjustment in conjunction with a section 212(h) waiver. This intent would not be effectuated if a waiver is granted nunc pro tunc to avoid the requirement that the alien must establish eligibility for adjustment of status.
We conclude that since the statute does not provide for a “stand alone” waiver under section 212(h) without an application for adjustment of status, granting a waiver nunc pro tunc would violate the plain language of the statute and the intent of Congress. See Poveda v. U.S. Att‘y Gen., 692 F.3d at 1177–78. Our precedent issued prior to the 1990 and 1996 amendments to section 212(h), including Matter of Sanchez, is therefore no longer valid. Section 212(h), as amended, does not permit an alien in the respondent‘s situation to apply for a waiver given his ineligibility for adjustment of
During the pendency of this appeal, the respondent submitted a motion to remand, claiming that he is no longer removable based on Ramos v. U.S. Attorney General, 709 F.3d 1066 (11th Cir. 2013), a new Eleventh Circuit decision holding that a shoplifting offense under Georgia law was not an aggravated felony theft offense. He argues that the holding in Ramos precludes his petit larceny offenses from being classified as categorical crimes of theft or crimes involving moral turpitude and that he is therefore no longer removable. However, we do not agree that this decision announced new law that would warrant a remand for further proceedings.
Motions to remand, like motions to reopen, are discretionary in nature, and the requirements for a motion to remand are essentially the same as for a motion to reopen. Matter of Rajah, 25 I&N Dec. 127, 138 (BIA 2009); see also Matter of Barocio, 19 I&N Dec. 255, 256–57 (BIA 1985).
The respondent conceded removability through counsel below, and no argument has been presented that this concession should not be binding. See Matter of Velasquez, 19 I&N Dec. 377, 382 (BIA 1986). Moreover, the Eleventh Circuit‘s decision in Ramos directly followed its prior holding in Jaggernauth v. U.S. Attorney General, 432 F.3d 1346 (11th Cir. 2005), which related to the Florida law under which the respondent was convicted. The issue in both Ramos and Jaggernauth was whether the petitioners were removable for aggravated felony theft offenses, and neither decision addressed whether the petitioners were removable for crimes involving moral turpitude, which is the issue in the case before us. Furthermore, Jaggernauth was decided prior to the respondent‘s hearing before the Immigration Judge and therefore could have been raised at that time. See Matter of Coelho, 20 I&N Dec. 464, 472 (BIA 1992);
Because the respondent has not established eligibility for adjustment of status or any other relief from removal, the DHS‘s appeal will be sustained. The respondent will be ordered removed from the United States.
ORDER: The appeal of the Department of Homeland Security is sustained.
FURTHER ORDER: The respondent‘s motion to remand is denied.
FURTHER ORDER: The respondent is ordered removed from the United States to Colombia.