Shade Lawal v. U.S. Attorney General ( 2013 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-15495
Non-Argument Calendar
________________________
Agency No. A024-690-603
SHADE LAWAL,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(February 28, 2013)
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Before TJOFLAT, MARCUS, and KRAVITCH, Circuit Judges.
PER CURIAM:
Shade Lawal petitions for review of the Board of Immigration Appeal’s
(“BIA”) dismissal of his appeal of the denial of his application for a waiver of
inadmissibility under § 212(h) of the Immigration and Nationality Act (“INA”), 8
U.S.C. § 1182(h).
Shade Lawal is a native and citizen of Nigeria. He became a lawful
permanent resident of the United States in 1981. In 2004, Lawal was convicted in
Georgia state court of theft by taking and sentenced to twenty-four months of
imprisonment. He was convicted again in 2008 in Georgia state court of
employment insurance fraud and sentenced to twelve months of imprisonment. In
2009, after leaving the United States for a two-week trip to Nigeria, Lawal lawfully
reentered. In 2010, the Department of Homeland Security initiated removal
proceedings against Lawal, charging him as removable for having been convicted
of two crimes involving moral turpitude, 8 U.S.C. § 1227(a)(2)(A)(ii), and for
having been convicted of an aggravated felony involving a theft offense, id. §
1227(a)(2)(A)(i).1 At his removal proceeding, Lawal submitted an application for
a § 212(h) waiver of inadmissibility. The Immigration Judge (“IJ”) denied the
1
Lawal’s theft offense served as the basis for the aggravated felony ground of removal,
8 U.S.C. § 1227(a)(2)(A)(iii), as well as one of the two convictions required for the multiple
convictions of crimes involving moral turpitude ground of removal, id. § 1227(a)(2)(A)(ii).
2
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application, finding that Lawal was not eligible for a waiver because he had been
convicted of an aggravated felony after he had been previously admitted to the
United States as a lawful permanent resident.
Lawal appealed the IJ’s denial of his waiver application to the BIA. Citing
our decision in Lanier v. U.S. Att’y Gen., 631 F.3d 1363 (11th Cir. 2011), the BIA
agreed with Lawal that his convictions did not render him ineligible for a § 212(h)
waiver. Nevertheless, the BIA dismissed the appeal after finding that Lawal was
ineligible for the waiver because he failed to concurrently file an application for
adjustment of status with his waiver application. See 8 C.F.R. § 1245.1(f) (“[A]n
application [for adjustment of status] under this part shall be the sole method of
requesting the exercise of discretion under sections 212(g), (h), (i), and (k) of the
Act, as they relate to the inadmissibility of an alien in the United States.”). Lawal
now petitions this court to review the BIA’s decision and claims that the BIA
ignored its own binding precedent, Matter of Sanchez, 17 I. & N. Dec. 218 (BIA
1980), in dismissing his appeal.
Lawal argues that the BIA’s decision in Sanchez permits an alien in his
circumstances—an alien who has departed the United States and lawfully returned
after becoming subject to removal—to apply for a § 212(h) waiver without filing
an application for adjustment of status. In Sanchez, a Mexican native entered the
United States as a lawful permanent resident and lived here from 1965 to 1970. In
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1970, he moved to Mexico and commuted daily into the United States for work
until 1976, when he began residing with his family in the United States. After a
visit to Mexico in 1976, he was arrested at the U.S. border before he could seek
entry 2 into the United States. He was taken into custody, charged with mail fraud,
and released the next day into the United States pending his trial—upon his release
from custody, the immigration laws treated Sanchez as having entered the United
States. Id. at 220. Sanchez eventually pleaded guilty to the mail fraud charge and
in 1977 was given a suspended sentence of twelve months and one day. Under the
immigration laws, Sanchez’s conviction rendered him excludable should he depart
and try to reenter the country. Id. at 222-23. Nevertheless, Sanchez made many
2
Immigration cases prior to 1996 use different terminology from immigration cases after 1996.
Before Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (“IIRIRA”), an alien’s legal status was determined by whether he had made an “entry” into
the United States. “An alien could achieve ‘entry’ by physically crossing into United States
territory regardless of whether the alien crossed legally or evaded inspection.” Poveda v. U.S.
Att’y Gen., 692 F.3d 1168, 1174 (11th Cir. 2012). Aliens who had not yet entered the United
States, and were barred from entering under the immigration laws, were deemed “excludable”
and subject to exclusion hearings. Id. Aliens who had entered the United States, with or without
inspection, were deemed “deportable” and subject to deportation proceedings. Id. With the
passage of the IIRIRA, the term “entry” was replaced with the term “admission,” see 8 U.S.C. §
1101(a)(13)(A), an alien deemed “excludable” was now considered “inadmissible,” see id. §
1182, and exclusion proceedings and deportation proceedings were replaced with a unified
“removal proceeding” tasked with determining both inadmissibility and deportability, see id.§
1229(a). The term “deportable” no longer merely refers to an alien in the United States; now it
refers to an alien in and admitted to the United States who is subject to removal. See id. §
1227(a). Additionally, the procedure by which an alien is removed from the United States no
longer turns on the physical location of the alien. See Assa’ad v. U.S. Att’y Gen., 332 F.3d 1321,
1326 (11th Cir. 2003). “The distinction now turns on status rather than location. An alien in the
United States who has been admitted is subject to deportability grounds, while an alien who has
not, regardless of his or her location, is subject to inadmissibility grounds.” Poveda, 692 F.3d at
1174-75 (internal citations omitted). When discussing cases that were decided prior to 1996, we
use the terms entry and excludable. When discussing cases that were decided after 1996, we use
the terms admitted and inadmissible.
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brief trips to Mexico after his conviction and was never denied entry upon his
return. Id. at 222. Instead of excluding Sanchez at the border after these trips, in
1978 the United States initiated deportation proceedings against him for having
been “convicted of a crime of moral turpitude committed within five years after
entry.” Id. at 220.
During the course of these proceedings, Sanchez sought a § 212(h) waiver.
Because the facts rendering Sanchez deportable were the same as what rendered
him excludable, the BIA found that Sanchez could be eligible for a § 212(h)
waiver. 3 Id. at 222 (concluding that relief under § 212(h) “may be granted nunc
pro tunc in deportation proceedings in order to cure a ground of [excludability] at
the time of entry”). By permitting access to the § 212(h) waiver nunc pro tunc, the
BIA effectively treated Sanchez’s waiver application as if he were seeking
admission at the border, even though Sanchez was in a deportation proceeding.
See id. at 223 (“[A] waiver of the ground of [excludability] may be granted in a
deportation proceeding when, at the time of the alien’s last entry, he was
[excludable] because of the same facts which form the basis of his
deportability.”). 4
3
The BIA’s final determination of § 212(h) eligibility in Sanchez was contingent upon the
outcome of certain other inquiries not relevant here.
4
8 C.F.R. § 1245.1, the Department of Homeland Security’ s current regulation governing the
adjustment of status applications, indicates that filing an adjustment of status application is “the
sole method” for an alien located “in the United States” to seek a § 212(h) waiver. 8 C.F.R. §
1245.1(f). Despite § 1245.1(f)’s exclusive wording, § 1245.1(f)’s virtually identical predecessor,
5
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The BIA’s decision in Sanchez established that aliens who become
excludable after an original lawful entry may later be deported from the United
States if they depart and return, but they may also be eligible for waivers of
excludability after they have reentered. Following Sanchez, the BIA’s policies
effectively created two classes of deportable aliens who were eligible for a §
212(h) waiver: (1) deportees who had not left the country since becoming
deportable that filed an adjustment of status application while seeking the § 212(h)
waiver, see 8 C.F.R. § 1245.1(f); and, after Sanchez, (2) deportees who had
departed and returned to the United States whose grounds for deportation were
based on the same facts that rendered them excludable at their last entry. 5
Deportees belonging to the second class were not required to submit an application
for adjustment of status with their application for the § 212(h) waiver.
Decisions of this court and changes in the immigration laws, however, have
called Sanchez’s viability into question. In Yeung v. INS, 76 F.3d 337, 341 (11th
§ 245.1(f), was in place when Sanchez was decided. See Adjustment of Status to That of Person
Admitted for Permanent Residence, 30 Fed. Reg. 14778 (Nov. 30, 1965) (“[A]n application
under this part shall be the sole method of requesting the exercise of discretion under sections
212(g), (h), and (i) of the Act, insofar as they relate to the excludability of an alien in the United
States.”). Sanchez, however, was held to be eligible for § 212(h) relief without having to submit
an application for adjustment of status. Accordingly, Sanchez effectively created another method
to obtain § 212(h) relief for aliens in the United States in addition to the “sole method” described
in the regulation.
5
Aliens who are seeking admission into the United States at the border (but who have not yet
entered and been admitted) are also eligible for a § 212(h) waiver without having to submit an
adjustment of status application. See Matter of Abosi, 24 I. & N. Dec. 204, 207 (BIA 2007).
Aliens in this scenario are not considered “deportable” because they are not in, and have not
been admitted to, the United States. See 8 U.S.C. § 1227(a).
6
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Cir. 1995), a lawful permanent resident—who was ineligible to apply for an
adjustment of status and who had remained in the United States after being
convicted of a deportable offense—challenged the BIA’s policy of permitting only
those aliens who departed and returned to the United States to seek a § 212(h)
waiver without also filing for an adjustment of status, arguing that this policy was a
violation of the equal protection component of the Fifth Amendment’s due process
clause. We agreed and held that no rational basis existed for the BIA’s position
that an alien is ineligible for the § 212(h) waiver “simply by virtue of his failure to
depart and reenter.” Id. at 340. We remanded the case to the BIA to reconsider its
prior interpretation of § 212(h) in light of that holding. 6
Recently, in Poveda v. U.S. Att’y Gen., 692 F.3d 1168 (11th Cir. 2012), we
indicated that, following our holding in Yeung and the substantial revision to the
immigration laws by the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (“IIRIRA”), the BIA had altered its position on § 212(h) eligibility
with regards to whether a deportable alien had departed and reentered the United
6
Following our ruling in Yeung but before the BIA issued a new decision, Congress passed the
IIRIRA. That legislation made two changes to the immigration laws relevant to the
determination of Yeung’s case: (1) the IIRIRA barred an alien previously admitted as a lawful
permanent resident from obtaining a § 212(h) waiver if the alien had been convicted of an
aggravated felony; and (2) this new bar applied retroactively to aliens who were in exclusion or
deportation proceedings on the date of enactment of the IIRIRA. Pub. L. No. 104-208, § 348,
110 Stat. 3009-546, 3009-639. On remand, instead of addressing this court’s holding in Yeung
that found the BIA’s interpretation of § 212(h) unconstitutional, the BIA found that Yeung was
not eligible for the waiver because (1) Yeung had been convicted of an aggravated felony after
having been previously admitted into the United States as a lawful permanent resident and (2)
the IIRIRA applied retroactively to Yeung’s case. Matter of Yeung, 21 I. & N. Dec. 610, 611-12
(BIA 1996).
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States. In Poveda, a lawful permanent resident—who was deemed ineligible for a
§ 212(h) waiver because he failed to also file an application for adjustment of
status—raised the same equal protection claim brought in Yeung. We rejected this
argument, noting that the BIA had “backed away from” the international
travel/lack of international travel distinction it employed in Yeung. Poveda, 692
F.3d at 1174. Now, the BIA differentiates “between those criminal aliens who
seek to be admitted to the United States, and those criminal aliens who are being
deported from the United States.” Id. at 1177 (quoting Klementanovksy v.
Gonzales, 501 F.3d 788, 793 (7th Cir. 2007)). Eligibility for a § 212(h) waiver,
therefore, is now available in two situations:
first, the Attorney General may provide a [§ 212(h)] waiver to an alien
at the border who seeks admission, including an alien who has
departed the United States after committing a deportable offense, so
long as the alien remains outside our borders while applying for
relief; and second, the Attorney General may provide a [§ 212(h)]
waiver to an alien within our borders after his conviction for a
deportable offense so long as he applies for an adjustment of status.
Id. at 1173 (emphasis added).
Lawal’s case reveals that ambiguity exists between the BIA’s current
interpretation of § 212(h) as articulated in Poveda, prior BIA precedent
under Sanchez, and the immigration statutes. Currently, a lawful permanent
resident who returns from abroad typically is not regarded as an applicant
for admission under the immigration laws. See 8 U.S.C. § 1101(a)(13)(C).
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But a lawful permanent resident who is convicted of certain crimes before
departing the United States is considered an applicant for admission upon his
return. Id. § 1101(a)(13)(C)(v). Because Lawal left the country after
committing his fraud and theft offenses, the immigration laws considered
him as seeking admission at the time he returned to the United States. See
id. §§ 1182(a)(2); 1101(a)(13)(C)(v). The manner in which the immigration
statutes regard an alien in Lawal’s circumstances—as an alien seeking
admission—raises some questions as to how he should be treated in light of
BIA precedent.
BIA precedent has established that in certain circumstances an alien in
the United States subject to deportation is nevertheless treated as if he were
outside the border seeking admission into the United States. Under Sanchez,
the BIA has treated an alien in a deportation proceeding that seeks a §
212(h) waiver as if he were seeking admission into the United States,
provided that the alien was inadmissible at the time of the alien’s last entry. 7
See Sanchez, 17 I. & N. Dec. at 223.
7
This approach has long been employed by the BIA. See e.g., Matter of L—, 1 I. & N. Dec. 1, 5
(BIA, A.G. 1940). In Matter of L—, an alien lawfully residing in the United States was
convicted of larceny and later briefly departed from the United States. Under the immigration
laws in place in 1940, L—’s conviction rendered him excludable if he departed the United
States—but such excludability could be waived pursuant to the discretion of the Attorney
General. Id. at 4. At the time, the power to grant a discretionary waiver appeared in the
statutory sections relating to the exclusion of aliens seeking entry into the United States, but no
corresponding waiver was present in sections involving deportation. Id. Upon L—’s return, he
9
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Similarly, 8 C.F.R. § 1245.1(f) treats an alien in the United States who
has submitted an application for adjustment of status as if the alien were
outside the country seeking admission into the United States. See Cabral v.
Holder, 632 F.3d 886, 891 (5th Cir. 2011) (“[A]liens who are already in the
United States must apply for an adjustment of status under 8 U.S.C. § 1255;
upon application, the applicant is assimilated to the position of an alien
outside the United States seeking entry as an immigrant.”) (internal
quotation marks omitted); Matter of Gonzalez-Camarillo, 21 I. & N. Dec.
937, 947-50 (BIA 1997) (Rosenberg, dissenting) (cataloguing prior BIA
precedent acknowledging that an individual seeking adjustment of status in a
deportation proceeding is assimilated to the position of an alien outside our
borders seeking admission into the United States).
The BIA’s current interpretation of § 212(h) permits the Attorney
General to grant a waiver to “an alien at the border who seeks admission,
including an alien who has departed the United States after committing a
was permitted entry into the United States, though the border inspector could have denied his
entry because of his conviction. Id. at 3. Later, L— was placed in deportation proceedings and
was ordered removed from the country. On appeal of this order, the Board of Review certified
L—’s case to the Attorney General, who concluded that there would be great inequity to grant
relief to aliens who were stopped and challenged upon reentry but deny relief to those aliens who
were excludable, nonetheless permitted entry, and later charged with being deportable. Id. at 5.
Accordingly, the Attorney General ruled that an alien who was excludable at the time of reentry
but had been granted entry to the United States and later was subjected to deportation
proceedings could be granted nunc pro tunc relief, where the alien would be treated as if he were
applying for permission to enter the country from “outside the United States.” Id. at 6. Sanchez
is an extension of the practice established in L—.
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deportable offense, so long as the alien remains outside our borders while
applying for relief.” Poveda, 692 F.3d at 1173. But, as we have seen, BIA
precedent already treats certain aliens in the United States as if they were
outside our borders seeking admission into the United States. See e.g.,
Sanchez, 17 I. & N. Dec. at 223. It is thus unclear whether the BIA’s current
interpretation of § 212(h)—that an alien seeking § 212(h) relief who has not
filed an adjustment of status application must remain “outside our borders
while applying for relief”—overrules Sanchez, or if the BIA’s current
interpretation essentially functions as a continuation of its precedent under
Sanchez, in which case the BIA would treat an alien satisfying the conditions
of Sanchez as if the alien were “outside our borders while applying for
relief.”
This is “an area of law where uniformity is particularly important.”
Jaramillo v. INS, 1 F.3d 1149, 1155 (11th Cir. 1993) (en banc). “When the BIA
has not spoken on a matter that statutes place primarily in agency hands, our
ordinary rule is to remand to give the BIA the opportunity to address the matter in
the first instance in light of its own expertise.” Negusie v. Holder, 555 U.S. 511,
517, 129 S.Ct. 1159, 1164, 173 L.Ed.2d 20 (2009) (internal quotation marks
omitted). We therefore remand to the BIA for the purpose of allowing it to
consider Lawal’s case in light of our intervening decision in Poveda and—if the
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BIA deems that Sanchez is not overruled—to apply Sanchez to Lawal’s case if the
BIA finds that it is applicable.
The BIA also found that Lawal was ineligible for a § 212(h) waiver under
the BIA’s comparable grounds rule. In Matter of Blake, 23 I. & N. Dec. 722, 729
(BIA 2005), the BIA held that an alien who was deportable based on a charge of
deportability to which there was no comparable ground of inadmissibility was
ineligible for a waiver under former § 212(c) of the Immigration and Nationality
Act. The BIA applied this comparable grounds rule to Lawal in the context of his
application for a § 212(h) waiver and found that no comparable ground of
inadmissibility existed. The Supreme Court, however, has recently struck down
the BIA’s comparable grounds rule as arbitrary and capricious. Judulang v.
Holder, 132 S.Ct. 476, 477, 181 L.Ed.2d 449 (2011). Accordingly, on remand, the
BIA is also to reconsider Lawal’s case in light of the Supreme Court’s holding in
Judulang.
VACATED and REMANDED.
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