Sammir A. Poveda v. U.S. Attorney General

сases were not moot. See Friends Ev- POVEDA, Petitioner, Sammir A. erglades, 570 F.3d 1216. v. judgment important Appellants

A because the district court can enforce it. GENERAL, U.S. ATTORNEY Instead, judgment with no offer of accom- Respondent. offers,

panying Appellees’ Ap- settlement No. 11-14512. pellants promise were left with a mere United States of Appeals, Court pay. Appellees pay, Appellants If did not Eleventh Circuit. filing prospect faced the breach of contract suit in state court with its attend- Aug. 2012. filing resulting ant two lawsuits fees— just one. instead of

III. CONCLUSION Appellees

We hold the failure of to offer

judgment prevented mooting Appel-

lants’ FDCPA claims.9 The district court in concluding Appellees’

erred offers of

settlement were for full relief such that

Appellants’ cases were mooted. We re-

verse the district Ap- court’s dismissal of

pellants’ claims for lack matter

jurisdiction, and pro- remand for further

ceedings consistent with opinion.10 AND

REVERSED REMANDED. 9. Federal Rule provides of Civil Procedure Appellants’ dress argument alternate that the procedure party wishing to submit an claims were not moot because the offers did judgment. offer Notably, purpose provide attorneys' sum certain of comports Rule Appellees’ goal with of set- fees and We judgment costs. note that if a Chesny, tlement. See Marek v. court, entered the district it will retain 3012, (1985) 105 S.Ct. 87 L.Ed.2d 1 jurisdiction any attorneys' to resolve fees and ("The plain purpose of Rule 68 is to encour- See, disputes. e.g., Sahyers costs Prugh, age litigation.”). settlement and avoid Karatinos, P.L., Holliday & F.3d (11th Cir.2009). Appellees’ Because we conclude offers did claims, Appellants’ not moot we do not ad- status, § 1255. Sammir resident,

Poveda, peti a lawful of a decision of the Board tions for review Appeals that vacated an Immigration judge’s decision that Poveda waiver under eligible 212(h). immigration judge that Poveda is had determined misreading based on in Lanier v. United States of our decisions (11th General, Attorney 631 F.3d 1363 Cir. (11th INS, 2011), Yeung v. 76 F.3d 337 and Cir.1995). argues as an alien Poveda States, in the he lawfully present United concurrently apply adjust for an need not status, must defer to of his but we ment of section contrary interpretation 212(h) by the Board. See 8 U.S.C. 1245.1(f). 1182(h); § § And we C.F.R. argument that the inter reject Poveda’s Board would violate his pretation by the component as a right equal protection law, Amend. V. process due U.S. Const. that he argument alternative Poveda’s alien, an inadmissable 8 U.S.C. qualifies as 1101(a)(13), § waiv eligible for Pozo, Gomez, & 212(h) Goldstein Juan Carlos also fails. We er under section FL, Gomez, LLP, Miami, Petitioner. for for review. deny Poveda’s petition Glaser, Fascett, Robyn Sheri Lauren Samuels, Bernal, Krystal U.S.

David V. I. BACKGROUND DC, Justice, OIL, Washington, Dept, of is a native and citizen Sammir Poveda Office, Ressler, Dist. Counsel’s Michelle his admittance into the Nicaragua. After Miami, FL, Respondent. for States, adjusted status Poveda admit- lawfully that of an alien

in 2002 to residence under the ted for Adjustment and Central Nicaraguan WILSON, and PRYOR Before 1997, Pub. L. No. Relief Act of American MARTIN, Judges. Circuit (1997). 105-100, 111 Stat. Poveda of a Florida court convicted PRYOR, Judge: Circuit by bodily battery on a child the offense by this question presented main 784.085(1), fluids, Fla. Ann. see Stat. a removable petition for review is whether afterward, of Home- Department soon eligible a waiver of inadmissa- alien is pro- removal Security commenced land Immigra- bility, under section him, see 8 U.S.C. ceedings against Act, Nationality 8 U.S.C. tion 1227(a)(2)(A)(iii), 1227(a)(2)(A)(i), §§ 1182(h), within the United if he remains 1227(a)(2)(E)(i). for an apply but fails determination, applied legal waiver of was based on a review 212(h). An immi- removal under section is de novo.” Although juris- we lack gration judge determined Poveda was diction “to review a decision of the Attor- removable, granted applica- but Poveda’s waiver,” ney grant General to or deny a 212(h) by tion for waiver under section 1182(h), jurisdiction U.S.C. “[w]e have interpreting our decisions in Lanier and legal review the question of whether Yeung eligible to mean that an alien is statutorily [Poveda] a hardship regardless of whether Lanier, §a waiver.” 631 F.3d at concurrently applied the alien has And, n. 2. jurisdiction we have government ap- of status. The consider constitutional challenges to the pealed that decision to Board of Immi- interpretation by the Board of the statute gration Appeals. it administers. See The Board vacated the 1252(a)(2)(D). Although “[w]e review decision, judge’s based on the decisions of statutory interpretation [Board’s] de circuits, two of our sister see Cabral novo,” we “will defer to the in [Board’s] (5th Holder, Cir.2011); 632 F.3d 886 terpretation of a statute if it is reasonable Gonzales, Klementanovsky v. 501 F.3d 788 and does not contradict the clear intent of (7th Cir.2007), that an alien must “submit Congress.” Jaggernauth Att’y v. U.S. 212(h) an application for a waiver concur- Gen., (11th Cir.2005). 1346, 432 F.3d rently visa, application with an for a ad- “[J]udicial deference to the Executive mission, of status.” The Branch especially appropriate is im the Board also that concluded the migration context.” Aguirre- INS v. judge precedents. had misread our The Aguirre, 1439, 119 S.Ct. Board reasoned that Lanier stood “for the (1999). 143 L.Ed.2d 590 “We review proposition adjusted that an alien who to novo,” challenges constitutional ... de La resident status is not paix Gen., Att’y v. U.S. necessarily barred from seeking a waiver (11th Cir.2010), and “federal classifi 212(h) under section ... as a result of cations such as those at issue in 212 of having been aggravated convicted of an the are felony,” scrutiny [Act] minimal and that the reference to Yeung Lanier explain only was intended to under the rational “that basis standard of re 212(h) a may granted by view, an and are valid if not arbitrary or Immigration Judge in removal proceedings Yeung, unreasonable.” 76 F.3d at 339. opposed being a form of relief re- standard, “Under the rational basis the stricted to seeking physical aliens entry bears the burden of establishing [alien] into the United States.” Because it con- government that the regulation is arbi cluded that Poveda ineligible was for the unreasonable, trary or rationally and not waiver, the Board ordered the government’s related to the purpose.” Id. removal of Nicaragua. Poveda to III. DISCUSSION

II. STANDARDS OF REVIEW We divide our discussion in parts. two only “This Court reviews the de First, Poveda, we discuss whether as an [Board], cision of the except to the extent borders, alien within our is for a that it expressly adopts the [immigration hardship waiver concurrently ‍‌​​​​​‌‌​​​​​​‌​​‌​​‌‌‌‌‌​‌​‌‌​​​​‌‌‌​‌‌​‌‌​​​‌​‍ap- without judge’s] opinion.” Att’y Nreka U.S. Gen., (11th Cir.2005) plying of his status. F.3d (internal omitted). Second, quotation marks we discuss whеther Poveda “To the extent that the ... applicant decision for [Board’s] admission. Borders, legislation.” Yeung, the 76 F.3d at 340 Alien Within Our

A. As an (internal omitted). Hardship a Ineligible quotation marks We Applies He an Ad- Waiver Unless that matter to the Board to remanded His justment General, Status. Attorney “afford the whom Congress authority has vested the to rule 212(h)(1)(B) gives of the [Act] “Section questions arising from the immi- legal on Attorney the discretion to General law, gration opportunity to reconsider immigration consequences waive and construe consistent with the person if a criminal convictions certain constitutional, statutory, competing and removal or or] her [his demonstrates at policy interests stake.” Id. 341. in ex- of admission would result denial family a citizen treme to U.S. Yeung, the wake the Board has Lanier, On member.” previous position. “abandoned” its Klem- face, only available its the waiver is entanovsky, 501 F.3d at 794. The Board inadmissibility in re- charged with interprets provide now At- only when the proceedings mоval Attorney may grant General agreed grant has torney General first, waiver in two situations: the Attor- visa, admission, application alien’s ney provide General waiver to an adjustment of status: or for an admission, alien at the border who seeks Attorney may, in his discre- General including departed an alien who has tion, application of [certain waive committing deporta- United States after inadmissibility] ... if ... grounds of offense, long ble so as the alien remains discretion, General, Attorney in his applying outside our borders while for re- to such terms ... as he pursuant lief; second, Attorney General by regulations prescribe, has consented may provide a waiver to an alien within applying reapplying to the alien’s or for after his conviction for a de- our borders visa, a for admission the United portable long applies offense so as for he States, adjustment or of status. adjustment an of status. Matter Cf. of 1182(h). (BIA 2007). Abosi, 24 I. N. Dec. & 205 no Although section mentions regulations provide for And federal and, face, deportability of on its grounds apply aliens who waiver charged with inad- applies only to aliens States, applica- while within the United an missibility, po- the Board earlier took the adjustment “shall tion for an status permanent that a lawful resident sition requesting the sole method of the exercise apply present in the United States could under section 212 ... discretion 212(h) during for a waiver under section (h)....” 1245.1(f). Abosi, 8 C.F.R. See deportation proceedings long so as he (interpreting 24 I. N. Dec. at 205 n. 2 & return[ed], “departed], applied] and then regulation distinguishing Klementanovsky, for a waiver.” admission, seeking apply who need not See, Sanchez, I. e.g., at 793. Matter 17 conjunction in of status with (BIA 1980). 218, 222-24 & N. Dec. a request a waiver under section position Yeung, we ruled that the 212(h), in and aliens the United States who ineligible that an for the Board alien is adjustment). apply must for status of his failure to “simply virtue statutorily that he is eli- argues recognize “to depart and reenter” was He contends that our gible for waiver. only distinction that can be characterized Yeung in Lanier and foreclose fair decisions arbitrary, as and that is without a of the Board that an object position the current and substantial relation the United status to obtain a waiver. Id. alien who remains within interpretation must 793-94. That is more con- States to obtain a waiver under plain language status of section sistent with the 212(h). disagree. We interpretation by than the earlier Yeung. the Board that we in addressed on Lanier is mis-

Poveda’s reliance decision, construed the placed. In that we 212(h), which

following provision of section The dissent’s contention that the Board in for review: petition is not at issue previous position has not abandoned its in granted waiver shall be under this “No Yeung misunderstands the current state of subsection in the case of an alien who has law, especially changes governing previously been admitted to the United wrought by Illegal Immigration Re- lawfully an alien admitted for States as Immigrant Responsibility form and Act of permanent residence if ... since the date previous position 1996. The of the Board of such admission the alien had been con- longer light is no tenable in the of the 1996 felony.” an aggravated victed of 8 U.S.C. Act, immi- “upheaval which created an 1182(h). plain concluded that “the We law,” gration Ashcroft, Adefemi that a language provides of [the statute] (11th Cir.2004). Congress Before person physically must have entered the Act, enacted the 1996 whether alien had inspection, after “entered” the United States affected his permanent ‘pre- resident order to have legal An status. alien could achieve “en- viously been admitted to the United States try” by physically crossing into United lawfully perma- as an alien admitted territory regardless States of whether the ” Lanier, nent residence.’ 631 F.3d at legally alien crossed or inspection. evaded 1366-67. And we determined “that Barber, Leng May See Ma v. statutory bar to relief not apply does 188-90, 1072, 1074-75, S.Ct. L.Ed.2d persons adjusted ... those to lawful (1958). Nevertheless, an alien cus- already resident status while tody temporarily paroled “pending de- living in the United States.” Id. admissibility” termination of his had not did not the alien We decide whether felon entered the though United States even he was otherwise to receive a waiver “physically was within the United States.” 212(h); under section we instead remand- Id. Whether an alien had mat- “entered” ed the matter to the Board to consider “important immigration pro- tered because question. Id. ” keyed ‘entry.’ visions were to alien’s Yeung Poveda’s reliance on no fares bet- Gen., 1321, Assa’ad v. Att’y U.S. ter. That decision an interpre- concerned (11th Cir.2003). 1328 had Aliens who not tation of section that the Board has yet subject entered the United States were away since “backed from.” Klementanov- to hearings. “exclusion” Landon v. Pla- sky, Yeung, 501 F.3d at 793. In the Board sencia, 21, 25, 321, 325, 459 U.S. 103 S.Ct. 212(li) possibility § “held out the that a (1982). L.Ed.2d And aliens who had waiver would deportee be available for a entered the United with or without departed who had and returned to this inspection, subject were to “deportation.” country subsequent his conviction.” Id. Id. (internal omitted). quotation marks longer procedure by No does “the which Board now construes section to al- an alien removed from the only [is] low those who seek readmission from within physical of our or States on the location of turn[] outside borders those our Assa’ad, borders who of the alien.” 332 F.3d at 1326.

H75 now turns on status rath- The dissent’s assertion that “The distinction “aliens who following Id. at 1326 n. 10. travel abroad “[A]n er than location.” their conviction who has been and who then face deportation alien in the United States can seek waiver, subject if deportability is even need not admitted overcome 237(a), § ground inadmissability 8 U.S.C. a of grounds, during see INA their 1227(a), not, § removal proceedings” ignores while alien who has re- the changes location, subject wrought by of his or her the 1996 Act. A gardless non-resident 212(a), alien, inadmissibility grounds, § INA country leaves this and then 1182(a).” returns, Id. be removed and is U.S.C. grounds inadmissability, whether or not Act the legal The 1996 affected status of he committed a crime before traveling permanent a lawful resident who returned 1101(a)(13)(A). abroad. 8 U.S.C. And a trip from a abroad. Under former section permanent lawful resident who travels 101(a)(13) Immigration of the and Nation following abroad a conviction for certain Act, ality returning permanent resident will crimes also be treated as an applicant regarded making alien was not “an en upon admission his return. try” long into the United States so as the 1101(a)(13)(C)(v). Contrary to the dis- presence alien’s abroad was not “intended assertion, sent’s permanent lawful resi- reasonably expected.” Rosenberg ... crime, abroad, dent who commits a travels Fleuti, 83 S.Ct. any and returns is treated like other alien (1963) 1807, 10 (citing L.Ed.2d former seeking admission at our border. That the 1101(a)(13)). Fleuti, In government may charge choose to a re- held that a Supreme perma Court lawful turning permаnent lawful resident with “innocent, nent resident’s casual and brief’ grounds of deportability instead sufficiently excursion “interrup was grounds inadmissability change does not tive” the alien resident’s status to be permanent the lawful resident is sub- “intended” and would not deemed an be ject grounds inadmissability upon “entry.” Id. at S.Ct. country return to this under words, permanent other a lawful resident 1101(a)(13)(C)(v). See, e.g., Matter “innocent, casual, who made an and brief’ Martinez, Guzman 25 I. & N. Dec. deportable, excursion abroad was but not (BIA 2012) (“If 848 n. 4 perma- a lawful excludable. Id. The 1996 Act altered the permitted nent resident to reenter the for permanent law residents who returned inspection by United States after an immi- “innocent, to the United States after an gration casual, officer but is thereafter deter- and brief To excursion” abroad. sure, engaged illegal activity mined to have resident who re reentry, may before the alien ordinarily turns from abroad is not consid charge an applicant deportability ered for admission. 8 of ... for having U.S.C. 1101(a)(13)(C). permanent But a lawful been inadmissible at the prior time of a Thus, entry.”). resident who commits certain crimes be a waiver of inadmissability 212(h) departure applicant fore is considered an under section is available to him. upon for admission regardless regime his return This is different system from the length trip. of the of his Yeung 8 U.S.C. described in that existed before 1101(a)(13)(C)(v). 1996, Had Poveda left the where resident country after committing his sexual of who committed a crime before embarking fense, he would have been treated an a trip eligible as on abroad was to receive a 212(h) applicant upon for admission his return to section though waiver even he was country. applicant this not considered an for admission 1176 unambiguously on an spoken ute has not country long so as to this

upon his return casual, “innocent, issue, interpretation of the statute and brief.” trip was his it is enti- agency an entitled to administer misappre- under the labors The dissent long it is tled to deference so reason- eligi- who are that there are aliens hension Gen., Att’y 565 F.3d able.” Chen U.S. 212(h) even under section ble for a waiver Cir.2009) (internal (11th 805, quotation 809 admission at the sought if have not omitted); see Chevron marks and citations adjust their status. applied to border or Council, U.S.A., Inc. v. Natural Res. can cite no decision of the Def. But the dissent Inc., 467 U.S. S.Ct. in the last 1996—no decision Board after (1984). degree 81 L.Ed.2d 694 “The may that an alien years states —which in the field especially great ‍‌​​​​​‌‌​​​​​​‌​​‌​​‌‌‌‌‌​‌​‌‌​​​​‌‌‌​‌‌​‌‌​​​‌​‍of deference is 212(h) section with- receive a waiver under Chen, 565 F.3d at 809 immigration.” of or for ad- applying out for admission (internal omitted); quotation marks Indeed, un- we are justment of status. Aguirre-Aguirre, discusses any of decision that even aware 212(h) at 1445. Because section S.Ct. proposition. about whether an alien within our silent opinion that the of The dissent asserts borders obtain waiver matter that the proves the Board concurrently applying for an ad- without ap- continues to adhere to its old Bоard status, justment we must of consider just opposite is true. The proach, but interpretation whether the new of section not state that Poveda was opinion does 212(h) by the Board is reasonable. long as he eligible to receive the waiver so returned, regardless of whether he left interpretation by The new the Board of Indeed, ground inadmissability. faced a of section alien within the —that citation to a Board opinion provides no apply adjust must for an United States and, of precedent decided before ment of his status to receive a course, Instead, no citation to Sanchez. Cabral, waiver—is reasonable. See explain that “a opinion cites Abosi 891; Klementanovsky, F.3d at resident seek- returning legal permanent Although permits inadmissibility ing ground to overcome a grounds certain Attorney General to waive required apply is not inadmissibility, grounds deporta not conjunction with a waiver of inad- status bility, an alien within the United States missability.” opinion And the cites Klem- applies of status “is explain entanovsky and Cabral position assimilated to the of an alien out seeking admis- because was seeking entry as an side the United States sion, for an ad- required he was may adjust immigrant” because an alien justment conjunction “in with a status only if he is status admissible. inadmissability.” If the Board Immigration al., et Law Charles Gordon ap- old truly continues to adhere to its (rev. 2001); ed. 51.03[3] and Procedure proach, puzzling explain it is that it did not Cabral, 891; 632 F.3d at Jankowski-Burc that Poveda could have been (2d INS, 172, 175 n. 2 zyk v. waiver, if face a even he did not 1255(i)(2)(A) Cir.2002); see 8 U.S.C. ground inadmissability, long of so as he (stating may adjust that an alien obtain an departed and returned. only ment in status if he “is admissible to ”). .... The Board rea the United States of the immi interpretation Attorney sonably concluded that the Gen by the Board is “due gration statutes hardship to an may grant eral waiver appropriate. deference where Chevron Chevron, position. in a stat- alien in that assimilated Congress Under where words, likewise In Two of our sister circuits have tus. other a waiver of inadmiss- interpretation by the new ability held that only grounds is available to waive of Board of section is reasonable. inadmissability. Cabral, upheld the Fifth the deci- Circuit “Congress has plenary power ineligi- that an alien was sion of the Board pass legislation concerning the admis hardship for a waiver because apply

ble aliens,” sion and exclusion of and “federal he remained within the United States and distinguish classifications among applied for an of sta- had groups subject only aliens are to ration 891, tus, 632 F.3d at and Klementanov- al basis review.” Resendiz-Alcaraz v. sky, upheld the Seventh Circuit the same (11th Ashcroft, 1262, 383 F.3d Cir. decision, kind of 501 F.3d at 794. 2004). “Rational basis review is not de argues, and the dissent Rather, manding. a legislative classifica agrees, that there is no rational basis for subject tion to rational basis review is aliens, the Board to differentiate between a strong presumption accordеd of validity, Poveda, like who have failed to travel and and review of enactments self-deported, gov aliens who have but the rational basis para standard must be a responds Congress ernment has ra (internal digm judicial restraint.” tionally distinguished between aliens who omitted). quotation marks and citations are inadmissible and aliens who are de types “legislative These classifications portable. agree with government. We upheld against must be an equal protection Poveda and the dissent misconstrue the challenge if there any reasonably con by Congress classifications made and the ceivable state of facts that provide could Board. The distinction between an alien rational classification, basis for the and the ineligible who is for a waiver and burden lies on the [alien] demonstrate an alien is eligible for the waiver is that no conceivable basis exists to support not “lack of international travel.” Con- (internal the classifiсation.” Id. at 1271-72 gress and the Board instead have differen- omitted). quotation marks and citations tiated “between those criminal aliens who job “Our is not to determine the ultimate States, seek to be admitted to the United Congress’ wisdom of decision to deny dis criminal being and those aliens who are cretionary relief .... [R]ational-basis re deported the United States.” Klem- from equal view in protection analysis is not a entanovsky, 791-92. The for- wisdom, license for judge courts to category mer apply aliens is fairness, logic legislative choices.” waiver while the latter cate- (11th 919, Ashcroft, Moore v. gory ineligible apply for a waiver. Id. Cir.2001) (internal quotation marks omit at 792. ted). by The new Congress classifications There are at least five rational bases for the Board are different from the state of the classifications Congress defined the law perma before when a lawful First, the Board. at least in cases where nent resident could a hardship receive an аlien must for the waiver while See, only waiver if he departed. e.g., Matter outside the “Congress United (BIA Balao, 20 I. & N. Dec. 1992). might have wanted to that danger- ensure After res including ous people, those convicted of ident only obtain if he is ..., applicant crimes remain outside the for admission or assimilated to the position applicant applications of an States while their admis discre- by applying sion of sta- tionary being relief are considered.” Ca- 893; Klementanovsky, and concluded that the distinction between bral, at 632 F.3d Second, in these at 792-93. deportable 501 F.3d and an excludable alien’s eli- cases, have wanted aliens “Congress might 212(c) gibility for relief under section was from outside waivers to do so seeking such rational: discourage in order to States the United A rational and indeed sensible reason the ‘fly to under attempting them from Congress’s readily assigned can authorities of the radar’ more lenient treatment of excludable as discretionary ulti- wаiver is that the event deportable aliens: it cre- distinct from 893; Cabral, 632 F.3d at mately denied.” deportable aliens to ates an incentive for Third, at 793. Klementanovsky, 501 F.3d all country leave the is after —which cases, have ra- “Congress might in these their hav- goal deportation —without a waiver to those granting tionalized that govern- to leave at the ing be ordered at seek readmission self-deport and expense. ment’s To induce their volun- provides an incentive for such the borders dangled a little carrot is tary departure, voluntarily depart at their own aliens to them, consisting of opportuni- before 893; Cabral, 632 F.3d at Klem- expense.” ty waiver should seek to to seek a Fourth, at entanovsky, 501 F.3d country by doing return to the and so where an alien either remains out- cases trigger proceedings. exclusion adjust- applies our side borders borders, while within our ment of status equal protection This issue must not be immigration author- provide the alien must INS, confused with that Franсis v. ities with information about his where- (2d Cir.1976), 532 F.2d 268 where the [gain] “immigration and authorities abouts government taking was the irrational apple intercept at the and second bite position coming that an alien who after otherwise unlawful aliens.” Ca- consider had taken a trip to the United States bral, 893; Klementanovsky, 632 F.3d at abroad and returned and was then or- Fifth, might Congress 501 F.3d at 793. deported dered was entitled to more punish those who have wanted were consideration than one who had never given opportunity to become a lawful foreign trip coming taken a after “repaid resident and that act That is different from United States. by commencing by requir- a life of crime” the situation of an alien who seeks dis- ing self-deport them to before the Attor- cretionary relief while he is still outside ney request considers their for a General the United States. Klementanovsky, hardship waiver. Reno, (quoting v. Id. 1303-04 LaGuerre F.3d at 792. (7th Cir.1998)). Gen., Chuang Att’y U.S. distinction Board now makes similar be- (11th Cir.2004), 1299, 1304 is instructive. aliens, and tween removable inadmissible decision, In that reviewed the denial of we position is rational for the reasons deporta- from request alien’s for relief Chuang. we articulated in 212(c) tion under former section Act, Nationality Immigration and Long B. as He Remains So Within argued against alien the “bar INA States, Poveda is Not an 212(c) deportable relief criminal Admission. Applicant for 212(c) aliens, and its allowance of relief alternative, argues, in the aliens, right for excludable violate[d] that he is Equal Protection under the Due Process actually applicant because he is Fifth Amendment.” Clause of the that an alien rejected argument admission. Poveda contends 1303. We the alien’s

1179 (iii) lawfully permanent admitted for residence engaged illegal has in activity af- regarded seeking having departed “shall not be as an ad- ter the United States, pur- into the United States for mission that poses immigration (iv) of the laws” unless departed has from the United n alien has committed certain сrimes. 8 States legal process while under seek- 1101(a)(13)(C)(v). § U.S.C. Poveda con- ing removal of the alien from the that, tends when an alien commits one of United including pro- removal crimes, designated section ceedings under chapter and extra- 1101(a)(13)(C)(v)mandates that the alien proceedings, dition applicant be considered an for admission. (v) has committed an offense identi- that, Poveda maintains because he has 1182(a)(2) in title, fied section of this crimes, designated committed one of the unless since such offense the alien has an applicant he is for admission who is ..., granted been relief or for a hardship waiver. (vi) is attempting to enter at a time place other than designated as by The Fifth in Circuit Cabral—for immigration officers or has not been rejected good argument this exact reason — admitted to the United States after Cabral, “utterly as without merit.” 632 inspection and by authorization an im- Immigration F.3d at 892. The and Na migration officer. tionality Act defines the terms “admission” 1101(a)(13)(C). argu Poveda’s entry and “admitted” to mean “the lawful ment that he is an applicant for admission of the alien into the United States after ignores precept “in construing a inspection and authorization an immi statute, we do not look at one word or gration officer.” U.S.C. isolation, term in but instead we look to 1101(a)(13)(A). portion The latter of the statutory context,” entire Durr v. “governs statute the status of per- [lawful Shinseki, (11th Cir. returning manent residents] 2011) (internal quotation marks and altera trip States from a abroad.” Onwuamaeg- omitted). tion general rule of admis Gonzales, (1st bu v. sibility provided Cir.2006). The statute clarifies that a per- 1101(a)(13)(A), exception and an is provid manent resident alien who returns from 1101(a)(13)(C). ed in section regarded seeking abroad is not as an ad- admission,” “seeking Poveda is not mission each time he reenters the United 1101(a)(13)(C), U.S.C. because he has permanent States unless the resident has attempted reenter the United States taken certain actiоns: crime, committing after id. (C) lawfully An alien per- admitted for 1101(a)(13)(A). “already Poveda is law manent residence in the United States fully present the United States.” Ca regarded shall not seeking be an ad- bral, 632 F.3d at 892. And section mission into the pur- United States for 1101(a)(13)(C) triggered is not per when a poses of the laws unless the manent resident does not leave. See Ca alien— bral, 892; 632 F.3d at Vartelas v. Hold cf. (i) has relinquished abandoned or —er, U.S. —, 1479, 1484-85, 132 S.Ct. status, (2012) (explaining 182 L.Ed.2d 473 (ii) has been from absent the United “lawful returning residents ... period required States continuous ex- to seek an admission into days, cess of if any United States” take of the 1180 Poveda, precluding Mr. thus Yeung ic in to in section enumerated

actions (internal under seeking hardship marks a 1101(a)(13)(C)) quotation him from omitted); 212(h). v. BIA decision Richardson Because this alteration section and (11th 1338, Cir. Reno, 1346-47 I would prior precedent, 162 F.3d with our conflicts 1142, 119 S.Ct. 1998), review, vacated for petition Poveda’s grant Mr. (1999), reinstated 2016, L.Ed.2d 1029 143 order, and remand for the BIA’s vacate Cir.1999) (11th F.3d 1311 part by in 180 Yeung. consistent with prоceedings further (“IIRIRA perma the rules for also altered returning from abroad aliens

nent resident I. 101(a)(13)(c)pro new INA .... [The] Yeung, in As this Court observed lawfully ‘an admitted alien vides the avail- that delineates precedent in the States BIA residence seeking an admis waiver draws regarded ability of the shall not be purposes States for between aliens important sion into the United distinction the alien unless a conviction following laws travel abroad who ”) (emphasis omit actions].’ certain at 339-41. [takes those who do not. See id. and at 410. ted); Onwuamaegbu, 470 F.3d and leave the United States Aliens who they subject deportation to after who are CONCLUSION IV. for the automatically eligible are return for review is denied. petition Poveda’s waiver, they face a regardless of whether inadmissibility. Matter charge of See PETITION DENIED. (BIA 218, Sanchez, I. N. Dec. 222-23 17 & MARTIN, Judge, dissenting: 1980).2 words, Circuit who travel In other following them conviction and who abroad majority respectfully I dissent. waiver, deportation can seek the then face BIA abandoned its has states ground if need not overcome even 212(h) of interpretation of section previous pro- inadmissibility during their removal ‍‌​​​​​‌‌​​​​​​‌​​‌​​‌‌‌‌‌​‌​‌‌​​​​‌‌‌​‌‌​‌‌​​​‌​‍1182(h), INA, one which Aliens who have re- ceeding. See id. INS, Yeung v. was held unconstitutional not from travel abroad also need turned Cir.1995).1 (11th 337, I am 341 in order to of status convinced, however, BIA that the has for the section waiv- be considered ruling. To the acquiesced prior to our See, Balao, 20 I. & N. e.g., er. Matter essentially the contrary, applied the BIA 1992). (BIA 440, Dec. 446 problemat- that we found same framework -, 476, 479, 181 L.Ed.2d U.S. 132 S.Ct. of waivers. 1. Section 212 offers several kinds 1229a(a). here, (2011); 1182(h). U.S.C. 449 see also 8 As relevant See 8 U.S.C. does, 212(h)(1)(B) Attorney Supreme Court I use the gives ... Just as the "[s]ection immigra- "deportation” as a shorthand to refer the discretion to waive the term General deportability. Judu consequences convic- based on See tion of certain criminal removals "deporta person lang, (referring remov- if a demonstrates that her 132 S.Ct. at 483 tions Holder, cases”); denial of would result v. al or admission tion Carachuri-Rosendo 2583, - U.S. -, 2577, 2580, family to a U.S. citizen extreme 130 S.Ct. Gen., (2010) Att'y (referring v. an alien who member.” Lanier U.S. L.Ed.2d 1363, (11th Cir.2011). 2006); Nijhawan v. deportation” "faced Holder, 557 U.S. 129 S.Ct. (2009) (referring depor to "a Congress replaced 174 L.Ed.2d exclusion subject pro- proceeding”). An alien proceedings "a unified tation deportation with ” cedure, deportation who is proceeding,' is an alien known as ‘removal deportable he is under determining removal because whether an alien is inadmissi- - Holder, deportable. Judulang INA. ble or 'contrast, gued aliens who do not travel that the By BIA’s decision violated the following laws, conviction are not auto equal protection of the abroad we Indeed, matically eligible for the waiver. agreed. See id. 339-41. We concluded cannot these aliens seek waiver unless that the BIA’s distinguish decision to be- for, they apply also and are otherwise eli tween aliens who had traveled abroad and for, adjustment of status. Mat gible See “arbitrary.” those who had not was Id. at Parodi, N. 611-12 ter I. & Dec. alien, Precluding Po, 340. an like Mr. (BIA 1980) (noting that the waiver can be the chance to seek the waiver conjunction “in granted to these aliens “simply by virtue of depart his failure to status”); adjustment of Matter with impermissible. and reenter” was Bernabella, (BIA I.13 & N. Dec. 43-44 Yeung, In we remanded the matter to 1968) that an (holding alien could not seek the BIA for it to precedent, reconsider its the waiver because he was not otherwise tell, see id. but as far as I can status). Thus, adjustment for eligible Here, BIA has not done so. in concluding the case of an alien who does not travel that Mr. Poveda was not eligible for the conviction, following overseas and who 212(h), waiver under section adjustment cannot otherwise seek of sta emphasized BIA that he had not “left and 212(h) tus, simply the section waiver is not re-entered the United following States” available as a form of relief. Berna See And, offense. in summarizing analysis, its 43-44; bella, 13 I. & N. Dec. at see also BIA reiterated that Mr. Poveda was Parodi, 17 I. & N. Dec. at 612. “a returning not resi- upshot prece- under BIA dent.” This is the same framework we dent, subject an alien who is whether found to problem Yeung. deportation eligible waiver under case, recognize I that in this the BIA did 212(h) largely hinges on whether explicitly say that Mr. Poveda was he has after traveled abroad his conviction. ineligible adjustment for of status. It Specifically, an alien who cannot otherwise merely noted that he had not for applied adjustment seek an of status —but who has adjustment However, of status. I do not a trip eligible made overseas—is for the BIA understand the to have thereby contrast, In an waiver. alien who cannot adopted contrary prece to its rule — adjustment otherwise seek an of status— dent —that an alien can seek a section and who has not traveled abroad —is not 212(h) by. merely filing applica eligible for relief. status, tion for еven if that Yeung, applied the BIA this frame- eligible adjust alien is not otherwise alien, Po, work and held that the Mr. could See, Bernabella, e.g., ment of status. 13 I. 212(h) not seek a section waiver. See 76 43-44; Parodi, & N. Dec. at see also 17 I. BIA, According F.3d 338. Mr. here, & Dec. at 611-12. And it is N. eligible Po was not for this kind of relief that Mr. undisputed Poveda could not have “(1) adjust- because he could not file for sought adjustment of status.3 status, (2) ment of had not demon- Thus, Po, like Mr. Mr. departed strated that he had and returned Poveda was ren- ineligible following to the United States” his convic- dered for the section waiv- Court, tion. Id. Before this Mr. Po ar- “simply depart er virtue of his failure to immigrant In order to be of Mr. Poveda has stated that an visa status, immigrant him, “an visa [must be] immedi- was not available to and neither the BIA ately available to the alien at the time his government suggested nor the has otherwise. 1255(a). application is filed.” 8 U.S.C. available to waiver is Yeung, the section States. the United and reenter” following a con- travel аbroad Yeung, the BIA’s aliens who As 76 F.3d at 340. depor- then a critical distinction and who are reflects viction analysis here “departed have return to the United following their tation between conviction, country point at some and not to this because of their returned States Sanchez, and those deportable” 17 I. & inadmissibility. after became See their sojourn.” them to not led Also, “whose fate has aliens who meet N. Dec. at 222-23. that, had Mr. It is evident Id. at 341. adjust- need not description after his convic- traveled abroad the waiver. See of status to receive ment returned to tion and then However, Balao, N. Dec. at 446. 20 I. & him BIA have deemed the would ones cannot be described as these aliens 212(h) In waiver. for the section eligible seeking admission or ones who who are which re- Yeung, in view of our decision essentially position. in that same are framework, I not think the do jected this cannot be said to begin, To these aliens can in Poveda’s case ruling BIA’s Mr. they arе al- seeking admission because be stand. they ready back in the United States and inadmissibility at the charged with are not II. Likewise, reentry. these aliens time of majority Mr. Poveda’s The sets aside to the cannot said to be assimilated BIA ground that the has claim on the seeking who are admis- position of those that it previous- framework abandoned the applying are not sion because Majority Op. at ly espoused. See So, contrary adjustment of status. majority says that the Specifically, there are majority suggests, the what 212(h) to BIA construes section “now seeking aliens who are neither ad- some who seek readmission only allow those nor otherwise assimilated to the mission or those from outside of our borders within whom position seeking of aliens admission our borders who the BIA treats as waiver.” Id. of status to obtain are who have waiver. These aliens majority suggests thus that at 1174. The Sanchez, 17 I. & N. traveled abroad. See 1) key is aliens distinction between at 222-23. Dec. seeking admission or otherwise who are are position to the of those who assimilated reasoning BIA set forth applied The 2) who are seeking admission and In to Mr. case. precedent Poveda’s now, not. id. at 1177.4 What matters See eligibility, claim of rejecting Mr. Poveda’s indicates, majority is whether alien that not “left emphasized the BIA he had formally functionally seeking admis- and re-entered the United States” sion. See id. such, that, returning not “a he was resident.” This reflects permanent lawful agree

I because this view fails to cannot BIA continuing application prece- governing precedent BIA take into account dent, allows an alien who has trav- which ignores aspect a critical of the BIA’s case, abroad and who is then analysis in which eled actual Mr. Poveda’s above, deportation to seek the section precedent. that As set out applied because, 1992). (BIA adjust- This is like an application for 4. The BIA considers an admission, aрplicant seeking for ad- procedural "a mecha- alien ment of status to be justment must show that he is admis- by of status nism which an alien is assimilated seeking to the United States. See position to enter the United sible of one 1255(a). Rainford, & N. Dec. States.” Matter 20 I. waiver, admissibility inquire even when his is not ues to deportable into whether a at issue and even the absence ‍‌​​​​​‌‌​​​​​​‌​​‌​​‌‌‌‌‌​‌​‌‌​​​​‌‌‌​‌‌​‌‌​​​‌​‍of an previously alien has “left and re-entered adjustment of application for status. See the United States.” Balao, 446; Sanchez, 20 I. & N. Dec. at The majority points also out in the I. & N. Dec. at 222-23. For these rea- “admission,” course of defining IIRIRA sons, I majority, say and unlike the cannot provided, general, perma- BIA has abandoned the frame- nent resident aliens who travel abroad and rejected in Yeung. work that we who then seek to reenter the United States are not applicants considered III. 1101(a)(13)(C). admission. See 8 U.S.C. majority The I states that have “misun- majority quite correct that IIRIRA govern- the current state of the derst[ood] exception сarved out an to this rule. ing “ignore[d]” law” because I have general, a lawful resident who instituted changes Majority IIRIRA. has committed an offense that renders him Op. majority 1176. But the never inadmissible should seek upon admission explains any provisions how of the IIRIRA his return from trip abroad. See id. it cites had the effect of changing the BIA 1101(a)(13)(C)(v). to precedent which led denial of relief for majority But the then goes astray when Mr. Poveda. that, it asserts in light of these IIRIRA that, majority The accurately says prior provisions, lawful permanent residents IIRIRA, Congress provided to for two conviction, abroad, who have a travel and types proceedings of and de- —exclusion then return to the United States will only portation that whether an alien was —and “subject grounds be to of inadmissibility.” subject type to one of proceeding or anoth- Majority Op. at majority 1175. The seems depended er on whether he had made an imply to that such permanent lawful resi- “entry” into the United States. Id. at cannot, not, dents or otherwise will replaced 1174. IIRIRA “entry” the term subject deportation to on the of basis their “admission,” with the term see 8 U.S.C. conviction, result, and that as a there are 1101(a)(13)(A), grounds of “exclusion” permanent no lawful residents who would became grounds “inadmissibility,” see seek to avail themselves of the rule under id. and a unified proceeding—a Sanchez in order to obtain the section proceeding removal instituted for de- —was 212(h) waiver. See id. termining inadmissibility both deport- and 1229a(a). ability, see id. majority’s The argument will no doubt confound the BIA and en- But regard changes with to these imple- Indeed, forcement officials. contrary to IIRIRA, by mented the majority fails to what majority suggests, the there are explain they how detract from the BIA permanent some resident aliens who travel at issue precedent Although here. these abroad and who subject are then to depor- changes in the important, they law are do conviction, tation based on their rather nоt affect the substance of the BIA’s deci- than inadmissibility their at the time of Sanchez, sion in which allows an alien who See, reentry. e.g., Nelson, Matter abroad, 25 I. has traveled returns to the United (BIA 2011) 410, 410-11, & N. Dec. charged and is then with deporta- (alien bility permanent became lawful based on conviction to seek a resident in sec- 212(h) tion was waiver. See 17 I. & N. Dec. at convicted in 1999 of a drug case, offense, by 222-23. As shown Mr. Poveda’s traveled abroad and returned to BIA, Sanchez, in keeping with contin- the United States in subject and was 212(h) 17 I. waiver. See the section the 1999 seek part on based deportation & N. Dec. at 222-23. inadmissibility conviction, not his and reentry). the time of that, certainly recognize practice, I permanent rule that lawful general words, contrary to what the In other that render who have convictions residents believe, perma- majority appears who travel abroad them inadmissible and conviction, prior have a nent residents it may make less must seеk readmission abroad, the Unit- then return to travel can reenter likely that these aliens subject deportation can be ed States that it permission, such States with inadmissibility at the their on either based for them to be possible would then be Casillas- reentry, see Matter time of simply put, subject deportation. More (BIA 317, 317-18 Topete, 25 I. & N. Dec. may reduce the number provision alone, Nelson, 2010), see or their conviction to avail themselves who would seek 410-11, 415. The 25 I. & N. Dec. it rule But does under Sanchez. authority no to substan- majority provides aliens, and entirely group eliminate that res- position permanent its that these tiate Sanchez, eligible for under would be deportation ident aliens can be by of hav- virtue inadmissibility, and of their only because ing traveled abroad. See id. conviction. not because of their that I do not majority complains IIB.IRA, The result is even under BIA a case after cite decided residents there are some lawful that an alien receive that states abroad, offense, travel who commit apply- without waiver under section proceedings placed are then in removal adjustment of or for an ing for admission inadmissibility simply not at where their is But, Majority Op. at 1175-76. status. See resident issue. These are make governing regulations the BIA’s as subject deportation aliens who are clear, until precedent binding remains its conviction, their and not based on their it is modified or overruled. See and unless Nelson, I. N. inadmissibility. 25 & See majority the 1003.1(g). And C.F.R. 410-11, I have ex- Dec. at 415. And as authority to demonstrate that points to no in al- prior precedent.5 the decision Sanchez the BIA overruled its plained, BIA’s has analysis in point, to More to the the BIA’s permanent residents lows these lawful 1245.1(f) Instead, indicating that an alien in the majority the Seventh the relies on 212(h) waiv- Klementanovsky United States can seek a section v. Gon- Circuit’s decision in zales, (7th Cir.2007), adjustment only by applying of status. in order to er for F.3d 788 Op. changed Majority at 1173-74. But I do not read its views. conclude that the BIA has in San- the these to overrule the BIA’s decision chez, Majority Op. at 1176-77. But aliens in the United merely that which allows some Circuit in that case said Seventh subject deportation away” to be "appears from States who are BIA to have backed the applying Klementanovsky, for the waiver without prior position. considered its Indeed, added); adjustment Abosi and 8 for of status. (emphasis see also id. at 793 1245.1(f) merely clarify that aliens (noting position to be aban- C.F.R. that the "seems added)). inadmissibility facing charges (emphasis And the Seventh doned” who are apply adjustment on the status. Abo- this based must See Circuit made observation si, par- reasoning (noting in that that that the BIA advanced 24 I. & N. Dec. at 205-06 event, any seeking case. See id. at 793. "who are ticular aliens in the United States inadmissibility” not ground from the Seventh Circuit does decision overcome a obligation the of our to review apply relieve us of status in order must 212(h) waiver); apply case and BIA’s order in Mr. Poveda’s to be for the section 1245.1(f) prior panel precedent (addressing rule. our C.F.R. Abosi, inadmissibility of an points relate[s] "as majority [it] also to Matter States”). 2007), (BIA The BIA's deci- alien in the United 24 & and 8 C.F.R. I. N. Dec. 204 it Mr. Poveda’s case makes clear that the the majority regarding IIRIRA had any merit, to adhere to BIA continues Sanchez —that only provide it would another rea- is, BIA continues to the rule granting son for Mr. petition Poveda’s an alien who has traveled abroad and who remanding BIA, the matter to the so that deportation is then based on his the BIA could reconsider precedent.7 its can conviction seek the section This, course, the majority what has waiver, though inadmissibility even declined to do. issue and even the absence of an application of status. See IV. 17 I. & N. Dec. at 222-23. If majority For the I reasons have here, discussed it post-1996

wants a BIA case that reflects is apparent to me that the BIA continues principle, any then it need not look tо treat travel abroad different further than the case of Mr. Poveda him- from those who do not determining eli- self.6 gibility for waiver under sec- brings This me to a related and final 212(h). tion Because Yeung holds that point. Even if I were to accept major- unconstitutional, this is I grant would Mr. IIRIRA, ity’s reading i.e., it has petition, Poveda’s vacate order, the BIA’s precedent rendered BIA longer “no tena- and remand for further proceedings con- ble,” Majority Op. at it is clear that Yeung. sistent with the BIA has not recognized this. itself Indeed, all one needs to do is to look at the analysis

BIA’s actual in Mr. Poveda’s case

to see that the BIA has not concluded that prior precedent

its has been called into by

doubt changes by majori- cited

ty. the BIA What did Mr. Poveda’s

case is the same as what it in Yeung. did Thus, if READ, In re Sandra Ann argument even advanced Debtor. sion in addresses aliens like Mr. thought Poveda’s case Sanchez can be aas decision prior ‍‌​​​​​‌‌​​​​​​‌​​‌​​‌‌‌‌‌​‌​‌‌​​​​‌‌‌​‌‌​‌‌​​​‌​‍precedent. to overrule that facing charges Poveda who are not of inad- missibility. See 17 I. & N. Dec. at 222-23. 7. The BIA agency is the administrative has been interpret- entrusted with the task of majority suggests 6. The that the BIA’s order ing applying the INA in the first instance. in this case did not the rule laid out in 1103(a)(1), (g)(1); See 8 U.S.C. 8 C.F.R. Sanchez, Majority Op. sug- but this 1003.1(a)(1), (d)(1). And it is obvious from gestion ignores the BIA’s conclusion that Mr. the BIA’s order in Mr. Poveda’s case that the eligible Poveda was not part for the passed upon BIA has not the issue of the changes by IIRIRA majority. because he had not raised traveled abroad. That this, light of even if one were to assume that explanation reality underscores the had precedent the relevant BIA has been under- Mr. Poveda left and returned to the United provisions mined the IIRIRA that the ma- he would have been for the cites, jority appropriate course of action majority waiver. emphasizes that the would be to let the BIA examine this in the BIA in Mr. Poveda's case did not cite San- Holder, Negusie first instance. See z, Majority Op. che but that is of little 511, 129 S.Ct. 173 L.Ed.2d significance because it is obvious that the BIA (2009) (noting if the BIA has not applied reasoning to Mr. Pove- Sanchez issue, generally addressed an it should be Finally, da. I do not think that the BIA’s given opportunity "the to [do so] in the first failure unpublished, to cite in the Sanchez light expertise” (quota- instance in own its single-member ruling omitted)). that it rendered in Mr. tion marks

Case Details

Case Name: Sammir A. Poveda v. U.S. Attorney General

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Aug 27, 2012

Citation: 692 F.3d 1168

Docket Number: 11-14512

Court Abbreviation: 11th Cir.