Lead Opinion
This case calls upon us to interpret the phrase “lawfully resided continuously” as it is used in § 212(h) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(h), and as applied on the pending appeal. Petitioner Felix Rotimi, a lawful permanent resident, conceded in the proceedings below that he is removable, but he sought a waiver of inadmissibility pursuant to § 212(h). The Board of Immigration Appeals (“BIA”) determined, based on its interpretation of “lawfully resided continuously,” that Rotimi was ineligible for such relief. For the reasons stated below, we hold that the BIA’s interpretation of “lawfully resided continuously” as it is used in § 212(h) and applied to Rotimi is reasonable. We therefore deny Rotimi’s petition for review.
Background
The facts of this case are generally undisputed. Felix Rotimi entered the United States on June 7, 1995, as a B-2 nonimmigrant visitor with permission to remain for six months. He applied for political asylum with the former Immigration and Naturalization Service (“INS”) in September 1995, prior to the expiration of his visitor’s visa. Pursuant to the regulations in effect at that time, Rotimi’s application was assigned to an asylum hearing officer for adjudication. See 8 C.F.R. § 208.2(a) (1995). On May 17, 1996, the asylum office completed its review of Rotimi’s application and referred it to an Immigration Judge (“IJ”) for adjudication in deportation proceedings.
In July 1996, while his deportation proceedings were on-going, but after the expiration of his visitor’s visa, Rotimi married a United States citizen, who then filed a visa petition to classify Rotimi as an “immediate relative” under INA § 201(b), 8 U.S.C. § 1151(b). In conjunction with his wife’s petition, Rotimi filed an application for adjustment of status pursuant to INA § 245, 8 U.S.C. § 1255. The visa petition was approved on November 18, 1996. Rotimi’s applications for asylum and adjustment of status then remained pending before the IJ until March 20, 1997, at which time Rotimi withdrew his asylum application in favor of pursuing adjustment of status. On May 1, 1997, pursuant to agency practice, the government “use[d] its prosecutorial discretion to terminate [Rotimi’s deportation] proceedings to permit [him] to proceed with his application for adjustment of status before the INS rather than in immigration court.”
On May 22, 2002, Rotimi was convicted of attempted criminal possession of a forged instrument in the second degree, in violation of N.Y. Penal Law §§ 110.00 and 170.25, and he received a sentence of five years’ probation. In November 2002, upon his return from a brief trip abroad, Rotimi sought admission into the United States as a returning lawful permanent resident. Because Rotimi’s conviction was for a crime involving moral turpitude, his inspection was “deferred.” Thereafter, on June 13, 2003,
Appearing before the IJ, Rotimi conceded his removability and applied for a waiver of inadmissibility pursuant to INA § 212(h), 8 U.S.C. § 1182(h) (a “ § 212(h) waiver”). Section 212(h), however, provides that a lawful permanent resident is not eligible for such a waiver if, inter alia, “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.” Rotimi argued that he had “lawfully resided continuously” in the United States for the seven years immediately preceding June 13, 2003, because he had been a nonimmigrant visitor, an applicant for asylum and adjustment of status, and a lawful permanent resident during that period.
The IJ disagreed. She explained that although Rotimi had lawfully resided in the United States for the six months following June 7, 1995, the date on which he entered the country as a nonimmigrant visitor, his lawful residence ended in December 1995 when his nonimmigrant visa expired. Furthermore, the IJ stated that Rotimi’s “filing [of] an application for asylum in [September] 1995 did not exten[d] his non-immigrant stay in the United States [after his visa had expired] nor did it confer on [Rotimi] any lawfulness in his continued residence in the United States.” Finally, the IJ ruled that Rotimi’s application for adjustment of status “d[id] not make his overstayed time in the United States legal.” The IJ therefore concluded that Rotimi’s lawful residence in this country for purposes of § 212(h) began on August 13, 1997, the date he became a lawful permanent resident, thereby making him statutorily ineligible for a § 212(h) waiver.
Rotimi appealed this decision to the BIA, which affirmed the IJ in a nonprecedential decision by a single member. The BIA stated that “[a] period of lawful residence is one in which an alien has affirmatively been accorded the right or privilege of residing here and abides by the rules associated with that right or privilege.”
Rotimi filed a petition for review of the BIA’s decision, and this Court heard oral argument in the" pase on December 11, 2006. Thereafter, we granted Rotimi’s petition, vacated the BIA’s decision, and remanded the case to give the BIA an opportunity to provide a precedential interpretation of the phrase “lawfully resided continuously.” See Rotimi v. Gonzales,
in construing “lawfully resided continuously” as used in § 212(h), we would benefit from the BIA’s consideration of the term lawful- — including its use in relation to asylum seekers and adjustment applicants — in other provisions of the INA and the implementing regulations, along with Congress’s intent in providing for a § 212(h) waiver. In reviewing the BIA’s definition of lawful in § 212(h), we would also benefit from an explanation of the source of the definition and analysis as to whether an asylum seeker or an adjustment applicant meets that definition of “lawful.”
Id. The panel retained jurisdiction to decide any appeal following remand. See id.
On remand, the BIA issued a precedential opinion in which it interpreted the phrase “lawfully resided continuously.” See In re Rotimi, 24 I. & N. Dec. 567 (B.I.A.2008). At the outset of its opinion, the BIA explained that it was not attempting to adopt “a comprehensive definition of this statutory language” because an expansive interpretation was not necessary to resolve this particular case. See id. at 568, 571. Rather, the BIA addressed the specific question of “whether [Rotimi’s] 13 months as an applicant for adjustment of status and his earlier (and overlapping) time as an applicant for asylum count toward establishing that he has ‘lawfully resided continuously’ for 7 years before his removal proceedings were initiated.” Id. at 570.
As requested, the BIA’s analysis set forth the rationale for its interpretation of § 212(h). As an initial matter, the BIA acknowledged that the phrase “lawfully resided continuously” is unique to § 212(h) and that its meaning is ambiguous. See id. at 571. Although it recognized the “range of possible constructions it may be given,” the BIA reasoned that because “Congress has used the phrase ‘lawfully resided’ in a technical immigration provision designed to waive criminal grounds of inadmissibility set forth in the Immigration and Nationality Act[,] ... the meaning of the phrase needs to be derived in the context of the immigration laws.” Id. The BIA then identified four specific sources upon which it relied in construing the statute.
First, the BIA examined the legislative history of § 212(h), which provides in relevant part that the “managers intend that the provisions governing continuous residence set forth in INA section 240A as enacted by this legislation shall be applied as well for purposes of waivers under INA section 212(h).” H.R.Rep. No. 104-828, at 228 (1996) (Conf.Rep.). The BIA stated that this history, “while not extensive, lends some support to the proposition that an alien’s application for lawful status or other benefit that might not entail a ‘status’ must actually be approved before his or her residence in this country will be considered lawful for section 212(h) purposes.” In re Rotimi, 24 I. & N. Dec. at 572.
Third, the BIA relied on the Merriam-Webster’s Collegiate Dictionary, which defines “lawful” as “being in harmony with the law” or “constituted, authorized, or established by the law.” Id. at 574 (internal quotation marks omitted). From this, the BIA concluded that for an alien’s residence to be lawful, “it must be authorized or in harmony with the law, which requires some formal action beyond a mere request for authorization or the existence of some impediment to actual physical removal.” Id.
Fourth, the BIA examined case law, which it contended draws an important distinction between merely being an applicant for a privilege to remain in this country and actually being granted that privilege. See id. at 574-76. The BIA acknowledged that two of the cases upon which it relied—In re Lok, 18 I. & N. Dec. 101 (B.I.A.1981), and this Court’s decision in Tim Lok v. INS,
based on the long-standing construction of the term “lawful” in the Lok decisions, we think that there is a distinction to be drawn between permitting an alien’s presence in this country for a limited purpose and legalizing his or her stay. It is this distinction that provides the primary basis for our refusal to count [Rotimi’s] time spent as an applicant for benefits as periods during which he “lawfully resided” here for purposes of a section 212(h) waiver.
In re Rotimi, 24 I. & N. Dec. at 575-76.
In light of these sources, the BIA concluded that any lawfulllss associated with Rotimi’s residence in the United States ended when his nonimmigrant visa expired in December 1995. Id. at 577. Furthermore, it stated that Rotimi’s “submission of asylum and adjustment applications did not change the fact that his status as a nonimmigrant visitor had ended. Nor did filing such applications give [Rotimi] lawful residence here, as he was merely an applicant for benefits with, at best, a temporary reprieve while his applications were adjudicated.” Id. Accordingly, the BIA concluded that Rotimi’s continuous lawful residence began on August 13, 1997, when he became a lawful permanent resident, and it held that he was statutorily ineligible for a § 212(h) waiver because his lawful residence was fourteen months short of the required seven years.
Following the issuance of the BIA’s opinion, Rotimi filed a motion for this Court to restore the mandate in this case and consider the question raised in his initial petition for review — whether the BIA erred by holding that Rotimi had not “lawfully resided continuously” in the United States for a period of at least seven years immediately preceding June 13, 2003. It is to this question that we now turn.
Discussion
Rotimi was deemed inadmissible because he had been convicted of committing a crime involving moral turpitude. See 8
Rotimi’s removal proceedings were initiated on June 13, 2003. Thus, to be eligible for a § 212(h) waiver, he must have lawfully resided continuously in the United States since at least June 13, 1996. There is no dispute that Rotimi lawfully resided in the United States after August 13, 1997, the date on which he became a lawful permanent resident. Consequently, our analysis focuses on whether Rotimi lawfully resided here between June 13, 1996, and August 13,1997.
In considering this question, we are guided by the familiar two-step analysis set forth in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
The first step of the Chevron analysis is straightforward here. Congress has not defined the phrase “lawfully resided continuously” anywhere in the INA. Given the range of possible interpretations that might apply to it, we agree with the BIA that this phrase is ambiguous. See In re Rotimi, 24 I. & N. Dec. at 571; see also Quinchia v. U.S. Attorney Gen.,
The BIA concluded that Rotimi “did not ‘lawfully’ reside in the United States dur
Conclusion
For the foregoing reasons, Rotimi’s petition for review is DENIED.
Notes
. The BIA characterized this as a denial of Rotimi's asylum application. See In re Rotimi, 24 I. & N. Dec. 567, 568 (B.I.A.2008) ("On May 17, 1996, [Rotimi's] asylum application was denied and the DHS initiated deportation proceedings against [him].''). In fact, the asylum officer lacked the authority to deny Rotimi's application after Rotimi's non-immigrant visa expired, see 8 C.F.R. § 208.14(b)(2) (1995), a point conceded by the government, see Letter from Dione M. Enea, Special Assistant U.S. Attorney, to Catherine O'Hagan Wolfe, Clerk of the Court (Mar. 31, 2009) ("Enea Letter”), at 2. Thus, the proper way to characterize the asylum officer's action is as a referral. See In re L-K, 23 I. & N. Dec. 677, 680 n. 8 (B.I.A.2004).
. Once an order to show cause had been issued in Rotimi's case, the IJ acquired exclusive jurisdiction to adjudicate Rotimi's application for adjustment of status in deportation proceedings. See In re Roussis, 18 I. & N. Dec. 256, 257 (B.I.A.1982) (citing 8 C.F.R. § 245.2(a)(1)). The only way that the IJ could terminate those proceedings once they had started was upon request of the District Director of the INS. Id. at 258 (citing 8 C.F.R. § 242.7).
. There is a discrepancy regarding the date on which Rotimi’s removal proceedings commenced. When Rotimi’s case was originally before the agency, both the IJ and the BIA found that removal proceedings started on June 9, 2003, the date on which the Notice to Appear was issued. On remand, the BIA stated that the relevant date was June 13, 2003, the date on which the Notice to Appear was filed with the Immigration Court. We will assume the correct date is June 13, 2003, for purposes of this opinion, although we note that our analysis and conclusion would not change if the correct date were in fact June 9, 2003.
. The INS was reconstituted on March 1, 2003, as the Bureau of Immigration and Customs Enforcement and the Bureau of United States Citizenship and Immigration Services, both within the Department of Homeland Security. See Rashid v. Mukasey,
. We note that the BIA did not attempt to craft an interpretation of “lawfully resided continuously” that would apply to all cases in which questions about the lawfulness of an alien’s residence might arise. See In re Rotimi, 24 I. & N. Dec. at 568, 571. Thus, we need not consider whether a lawful status might be accorded an alien if he or she applied for a lawful status early in a substantial period of some other lawful status, for example, three months into a two year period for which an employment visa was issued, and the BIA inexcusably postponed decision on the application until after the expiration of the initial lawful status.
Concurrence Opinion
with whom
joins, concurring:
I agree with the Court that the Chevron doctrine requires us to defer to the BIA’s
The BIA concluded that Rotimi’s residence in the United States during the relevant time period — June 1996 to August 1997 — was not “lawful” because it did not stem from the grant of a specific privilege to be here. Rather, according to the BIA, Rotimi’s continued residence in this country after his nonimmigrant visa expired in December 1995 merely reflected the government’s indulgence of his presence pending the adjudication of his applications for asylum and adjustment of status. The agency explained that the distinction between being an applicant for certain privileges and being granted those privileges was the “primary basis” for its decision and was derived from In re Lok, 18 I. & N. Dec. 101 (B.I.A.1981), and Tim Lok v. INS,
By contrast, Rotimi was never subject to a deportation order at any time between when he lawfully entered the country and when he became a lawful permanent resident. Thus, he continued to reside in the United States after his nonimmigrant visa expired because the immigration authorities could not deport him. See, e.g., 8 U.S.C. § 1252 (1996) (providing the process for deporting aliens); Letter from Dione M. Enea, Special Assistant U.S. Attorney, to Catherine O’Hagan Wolfe, Clerk of the Court (Mar. 31, 2009), at 2 (characterizing a final order of deportation as “a prerequisite to the removal of any alien”). In other words, Rotimi’s continued residence was not a reflection of the government’s mere tolerance of his presence but rather was attributable to the fact that the immigration agency was legally barred from deporting him. Consequently, although the Tim Lok decisions draw the distinction between being an applicant for a privilege or benefit and being granted that privilege or benefit, those decisions do not appear to support the application of that distinction in the circumstances of this case. Given that this distinction served as the “primary basis” for the BIA’s decision in this case, I find it troubling that the
Furthermore, I do not believe that any of the other sources relied upon by the BIA adequately explain why, in the circumstances presented here, lawful residence follows only from the grant of a specific privilege to remain in the country. As an initial matter, the scant legislative history of § 212(h) offers no insight into congressional intent. Moreover, the dictionary definition of “lawful” does not support the BIA’s interpretation where, as here, the alien’s presence is in fact “authorized or in harmony with the law.”
Finally, although the agency relied on United States v. Ochoa-Colchado,
In Ochoa-Colchado, the Tenth Circuit held that an alien was not legally or lawfully in the United States for purposes of 18 U.S.C. § 922(g)(5)(A) simply because he had a pending application for adjustment of status. See
Upon close analysis, it appears that what drove the BIA’s interpretation of § 212(h) in this case was its concern that, were lawful residence to exist merely because there was some legal impediment to an alien’s removal, then “the vast majority of aliens in the United States who are entitled to a removal hearing and the associated appeal rights could claim lawful residence based on a combination of physical presence and some barrier to removal.” In re Rotimi 24 I. & N. Dec. at 573. Although it is important to be sensitive to this concern, I am not sure that it is warranted in the narrow circumstances of this case, where the alien filed his asylum application while residing in the United States in a lawful status and ultimately was granted lawful permanent resident status at the conclusion of the administrative proceedings that followed. I would also note that to conclude that Rotimi is statutorily eligible for a § 212(h) waiver would not call into question the Attorney General’s ability to exercise his or her
Moreover, the BIA’s disregard of these circumstances — where the alien filed his asylum application while residing in a lawful status in the United States and ultimately was granted lawful permanent resident status — could lead to an unreasonable interpretation of “lawfully resided continuously” because that interpretation could result in absurd and unjust consequences. See Ehrlich v. Am. Airlines, Inc.,
In construing § 212(h), the BIA explained that an alien’s status at the time he or she files an application for a privilege or benefit is irrelevant to the analysis because the alien’s residence is not lawful if he or she is merely an applicant for a privilege or benefit. It follows from this, however, that where, as here, an alien files an application while in a lawful status, the alien’s eligibility for a § 212(h) waiver might turn on how quickly the immigration authorities adjudicate that application. For example, if the agency granted the application prior to the expiration of the alien’s lawful status, then the alien later might be eligible for a § 212(h) waiver. If, however, the agency granted the application after the alien’s lawful status had expired, then the alien would not be eligible for such a waiver. This is precisely the type of absurd and unjust consequence that should be avoided when interpreting statutes. Cf. Lockhart v. Napolitano,
That said, Rotimi does not quite present such circumstances, because the application that the agency ultimately granted— his adjustment of status application — was filed after his nonimmigrant visa had expired.
. Although (he record does not permit me to confirm this, I suspect that the government played a significant role in Rotimi's decision to withdraw his asylum application in favor of pursuing adjustment of status. I draw this conclusion based on the fact that (1) Rotimi abandoned his asylum claim in March 1997 after his asylum application had been pending for approximately eighteen months, (2) the agency sought to terminate his deportation proceedings within approximately forty days after he withdrew his asylum application, and (3) the agency granted Rotimi's adjustment application less than four months after that.
Concurrence Opinion
concurring:
I concur in the Court’s opinion and judgment, but add these brief additional thoughts. Rotimi’s case is not an unsympathetic one. He entered the country lawfully (although that lawfulness has long since expired), he has been here now for 14 years, he is married to a United States citizen, and the basis for his removal, a conviction for forgery in the second degree, seems rather minor in significance. Perhaps he is a candidate for a private bill.
Whether or not the political branches can or will permit Rotimi to remain in this country, the judicial branch has no authority to render him eligible for section 212(h) relief by rejecting the reasonable statutory interpretation that the BIA made in this case when it concluded that the intervals in which his two applications for lawful status were pending did not count toward lawful residence.
. See Congressional Research Service, Private Immigration Legislation (Aug. 9, 2005), available at http://www.ilw.com/immigdaily/ news/2005,0819-crs.pdf (last visited June 16, 2009).