Matter of Y-N-P-, Respondent
United States Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals
Decided September 20, 2012
26 I&N Dec. 10 (BIA 2012)
Interim Decision #3767
FOR RESPONDENT: Nina Rabin, Esquire, Tucson, Arizona
FOR THE DEPARTMENT OF HOMELAND SECURITY: Alec J. Niziolek, Assistant Chief Counsel
BEFORE: Board Panel: GRANT and MULLANE, Board Members; LIEBOWITZ, Temporary Board Member.
LIEBOWITZ, Temporary Board Member:
In a decision dated January 14, 2011, an Immigration Judge found the respondent removable on her own admissions and denied her applications for special rule cancellation of removal under section 240A(b)(2) of the
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Mexico who entered the United States without permission on July 13, 2001. She was convicted in Arizona on April 12, 2010, of the felony offense of facilitation to commit illegally conducting an enterprise.
In proceedings before the Immigration Judge, the respondent admitted that she is inadmissible under section 212(a)(6)(A)(i) of the Act as an alien who entered the United States without being admitted or paroled. She also conceded that she is inadmissible under section 212(a)(2)(A)(i)(I) on the basis of her conviction for a crime involving moral turpitude. The
During the pendency of the respondent‘s appeal, we requested supplemental briefing from the parties in light of Matter of Bustamante, 25 I&N Dec. 564 (BIA 2011). In that decision, which was issued subsequent to the Immigration Judge‘s order, we held that section 212(h) does not waive the effect of a conviction for an offense under section 212(a)(2) of the Act in order to overcome the bar to regular cancellation of removal under section 240A(b)(1)(C).
Both parties have filed supplemental briefs in support of their respective positions. The respondent argues that she can utilize a section 212(h) waiver of inadmissibility to overcome the section 240A(b)(2)(A)(iv) statutory bar to special rule cancellation of removal that results from her conviction for a crime involving moral turpitude. The DHS‘s position is that even if the language of section 240A(b)(2)(A)(iv) of the Act might suggest that an alien can apply for a waiver of inadmissibility in conjunction with an application for cancellation of removal, the respondent is not statutorily eligible for a section 212(h) waiver.
II. ISSUE
The issue before us is whether an applicant for special rule cancellation of removal under section 240A(b)(2) of the Act can utilize a section 212(h) waiver of inadmissibility to overcome the section 240A(b)(2)(A)(iv) bar resulting from inadmissibility under section 212(a)(2). This is a legal question, which we review de novo.
III. STATUTORY PROVISIONS
Section 240A(b)(2)(A)(iv) of the Act provides that the Attorney General may cancel the removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States, where the alien has been battered or subjected to extreme cruelty by a specified individual, and where, inter alia,
the alien is not inadmissible under paragraph (2) or (3) of section 212(a) [of the Act], is not deportable under paragraphs (1)(G) or (2) through (4) of section 237(a), subject to paragraph (5), and has not been convicted of an aggravated felony . . . .
The Attorney General may, in his discretion, waive the application of [section 212(a)(2)(A)(i)(I) of the Act] if—
(1) . . .
(B) in the case of an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the alien‘s denial of admission would result in extreme hardship to [a qualifying relative of the alien]; . . .
. . . and
(2) the Attorney General, in his discretion, and pursuant to such terms, conditions and procedures as he may by regulations prescribe, has consented to the alien‘s applying or reapplying for a visa, for admission to the United States, or adjustment of status.
. . . .
IV. ANALYSIS
After reviewing the pertinent statutes, the overall scheme of the cancellation statute, and the relevant legislative history, we concur with the DHS‘s position and find that the respondent cannot establish eligibility for special rule cancellation of removal.
A. Eligibility To Apply for a Section 212(h) Waiver
Section 212(h)(2) of the Act gives the Attorney General the discretion to waive “the application” of section 212(a)(2) of the Act where, among other requirements, the Attorney General “has consented to the alien‘s applying or reapplying for a visa, for admission to the United States, or adjustment of status.” (Emphasis added.) The respondent does not fit within any of these three categories. She is clearly not applying or reapplying for a visa. Moreover, as explained below, the respondent is also not applying for adjustment of status or admission to the United States within the meaning of section 212(h) of the Act. See Poveda v. U.S. Att‘y Gen., No. 11-14512, 2012 WL 3655293, at *5 (11th Cir. Aug. 27, 2012) (recognizing the Board‘s limited application of the section 212(h) waiver and upholding our interpretation that the waiver is only available to aliens who are seeking admission at the border or applying for adjustment of status).
1. Applicant for Admission
The respondent argues that she is eligible for a section 212(h) waiver because she is “applying . . . for admission” and that once her ground of inadmissibility is waived, she can establish eligibility for special rule
Further, an applicant for admission must have some basis for being admitted. See generally section 235(b)(1)(A) of the Act (providing that an applicant for admission who does not present the necessary entry document will be immediately removed from the United States, subject to limited exceptions not relevant here);
Moreover, acceptance of the respondent‘s position—that applicants for admission, by virtue of that status alone, can apply for a section 212(h) waiver in conjunction with a special rule cancellation application—would lead to the problematic result that aliens who entered the United States unlawfully could concurrently apply for relief, while those who entered lawfully could not. The language of the relevant statutes does not support giving such preferential treatment to aliens who entered without inspection over those who followed the orderly entry procedures. See Gonzalez-Gonzalez v. Ashcroft, 390 F.3d 649, 652 (9th Cir. 2004) (finding that the language of the cancellation statute did not support according greater rights to aliens who entered unlawfully).
Finally, section 212(h) does not provide an independent basis for aliens to be admitted to the United States.1 Rather, a section 212(h) waiver enables
2. Adjustment of Status
In her supplemental brief, the respondent states that “the only interpretation that comports with the statutory language, the regulatory language, and the applicable case law, is that [section] 212(h) is available to those who are applying for admission or those who seek adjustment of status under [section] 245.” We recognize that section 240A(b) of the Act is entitled “Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents.” See also section 240A(b)(2)(A) of the Act (granting the Attorney General the authority to “cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence” an alien who satisfies the eligibility criteria for special rule cancellation of removal).2 However, for the reasons discussed below, the inclusion of this “adjustment of status” language
The adjustment of status of an alien who is granted special rule cancellation of removal occurs as a matter of course once the alien has established his or her eligibility for relief. See section 240A(b)(3) of the Act (providing that “the Attorney General shall record the alien‘s lawful admission for permanent residence as of the date of the Attorney General‘s cancellation of removal under [section 240A(b)(1) or (2) of the Act]”). Such an alien is not required to file an application for adjustment of status, establish his or her admissibility (as is required to adjust status under section 245(a) of the Act), or otherwise satisfy any eligibility criteria beyond those included in section 240A(b)(2). See generally Matter of Bustamante, 25 I&N Dec. at 569 (contrasting “cancellation of removal and adjustment of status” under section 240A(b)(1) of the Act with adjustment of status under section 245, and rejecting the argument that a waiver of the alien‘s criminal conviction would be available under section 212(h) based on the fact that his application for section 240A(b)(1) cancellation could result in his adjustment of status). Rather, lawful permanent resident status is granted solely as a consequence of the cancellation of removal.3
We find support for our conclusion in section 240A(b)(5) of the Act, which refers to a proceeding under section 240A(b) as “a cancellation of removal and adjustment of status proceeding.” This phrase must be read in context with the provisions of the Act as a whole. In section 212(h), Congress expressly listed the circumstances under which an alien may apply for that waiver of inadmissibility. Congress did not include “a cancellation of removal and adjustment of status proceeding” among the limited scenarios in which an alien may apply for such a waiver. Thus, section 212(h) reflects no congressional intent to permit an alien to apply for the waiver in conjunction with a special rule cancellation application.4
Based on the foregoing, we conclude that the respondent is not eligible for a section 212(h) waiver of inadmissibility and therefore cannot overcome the section 240A(b)(2)(A)(iv) statutory bar to special rule cancellation of removal.6
B. Implicit Waivers of Inadmissibility and Deportability
Section 240A(b)(2)(A)(iv) requires an applicant for special rule cancellation to establish that he or she “is not inadmissible [or] deportable” under any of certain enumerated sections of the Act. In contrast, to apply for regular cancellation of removal under section 240A(b)(1), an alien must establish that he or she “has not been convicted of an offense” specified in section 240A(b)(1)(C).
Highlighting Congress‘s use of these different terms, “inadmissible” in section 240A(b)(2)(A)(iv) and “convicted” in section 240A(b)(1)(C), and
In interpreting a statute, we must consider all of its provisions. See, e.g., Household Credit Services, Inc. v. Pfennig, 541 U.S. 232 (2004); K Mart Corp. v. Cartier, Inc., 486 U.S. 281 (1988). In this regard, we note that Congress has specifically provided a waiver of deportability for special rule cancellation applicants. Section 240A(b)(5) of the Act explicitly permits such an applicant who is deportable for a crime of domestic violence under section 237(a)(2)(E) of the Act,
There would have been no need for Congress to specify, and subsequently clarify, that the bar can be overcome by applying the section 237(a)(7) domestic violence waiver if it had intended to make all waivers of inadmissibility and deportability available to special rule cancellation applicants merely by virtue of its use of the terms “inadmissible” and “deportable” in section 240A(b)(2)(A)(iv). Thus, although we cannot explain the disparate language regarding the bars to relief in sections 240A(b)(1)(C)
The respondent asserts that even if there is some ambiguity regarding her eligibility for a section 212(h) waiver, denying domestic violence victims the opportunity to waive grounds of inadmissibility would run at cross-purposes to the ameliorative purpose of the special rule cancellation statute. However, various other provisions of section 240A(b)(2) offer greater flexibility for special rule cancellation applicants in meeting the statutory requirements for relief, including those regarding physical presence and good moral character. Compare sections 240A(b)(1)(A) and (B) of the Act (relating to the physical presence and good moral character requirements for regular cancellation of removal applicants), with sections 240A(b)(2)(A)(ii), (iii), (B), and (C) of the Act (relating to comparable requirements for special rule cancellation applicants). Moreover, we note that although Congress did not make a section 212(h) waiver of inadmissibility available to special rule cancellation applicants, section 212(h)(1)(C) of the Act explicitly provides that the Attorney General may grant such a waiver to a “VAWA self-petitioner.”
V. CONCLUSION
Based on the language of section 212(h) of the Act, we conclude that applicants for special rule cancellation are not eligible to utilize a waiver under that section. Moreover, the use of the term “inadmissible” in section 240A(b)(2)(A)(iv) of the Act does not provide such applicants eligibility to apply for a waiver of inadmissibility for which they are otherwise statutorily ineligible.
Cancellation of removal is a self-contained form of relief from removal, which is available only to aliens who meet the basic eligibility criteria set forth in the Act. The language of the pertinent statutes, which is supported by legislative history, does not allow the respondent to circumvent the requirements for eligibility set forth in section 240A(b)(2)(A)(iv) by applying for a waiver of inadmissibility under section 212(h). The respondent‘s contentions regarding the general ameliorative purpose of the special rule cancellation statute do not persuade us otherwise. We therefore conclude that the respondent is not eligible to apply for a section 212(h)
ORDER: The appeal is dismissed.