Gustavo Enrique Suarez Sanchez v. U.S. Attorney General ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 11-11592 U.S. COURT OF APPEALS
Non-Argument Calendar ELEVENTH CIRCUIT
________________________ DECEMBER 22, 2011
JOHN LEY
Agency No. A089-484-757 CLERK
GUSTAVO ENRIQUE SUAREZ SANCHEZ,
llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllPetitioner,
versus
U.S. ATTORNEY GENERAL,
llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllRespondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(December 22, 2011)
Before HULL, MARCUS and BLACK, Circuit Judges.
PER CURIAM:
Gustavo Suarez Sanchez (“Suarez”), a native and citizen of Venezuela, seeks
review of the Board of Immigration Appeals (“BIA”) final order affirming the
Immigration Judge’s (“IJ”) order of removal pursuant to the Immigration and
Nationality Act (“INA”) § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B). The BIA
concluded that Suarez was statutorily ineligible for adjustment of status to that of a
lawfully admitted permanent resident because he had been admitted into the United
States as an alien in transit without visa (“TWOV”). Suarez concedes that he was
initially admitted into the United States in TWOV status when he arrived at the
Houston-Bush Intercontinental Airport. He argues that, contrary to the BIA’s
conclusion, he was subsequently admitted into the United States in a status other than
TWOV when an immigration officer inspected his passport and airline ticket, and
permitted him to leave the airport’s immigration lounge and enter the general airport
area for the purpose of accessing the airport’s services. Thus, Suarez argues that he
was statutorily eligible for an adjustment of status.
I.
When examining a petition for review, we must first consider whether we have
subject matter jurisdiction. Resendiz-Alcaraz v. U.S. Att’y Gen., 383 F.3d 1262,
1266 (11th Cir. 2004). We review our subject matter jurisdiction de novo. Sanchez
Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1231 (11th Cir. 2007). We generally lack
jurisdiction to review a judgment regarding an alien’s adjustment of status to that of
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a lawfully admitted permanent resident. 8 U.S.C. § 1252(a)(2)(B)(i); see 8 U.S.C.
§ 1255. We, nonetheless, retain jurisdiction to review constitutional claims and
questions of law. 8 U.S.C. § 1252(a)(2)(D). Thus, we have jurisdiction to review a
claim to the extent that it challenges the application of a legal standard to an
undisputed factual pattern, but we may not review the BIA’s factual findings.
Jean-Pierre v. U.S. Att’y Gen., 500 F.3d 1315, 1322 (11th Cir. 2007).
Because Suarez’s eligibility for adjustment of status claim challenges the
application of the relevant statutory legal standard to the undisputed facts, we have
jurisdiction to consider his claim. Id.
II.
Where the BIA issues its own opinion, we review only the BIA’s decision
unless the BIA expressly adopts the IJ’s decision. Kueviakoe v. U.S. Att’y Gen., 567
F.3d 1301, 1304 (11th Cir. 2009). Here the BIA issued its own decision, without
expressly adopting the IJ’s decision, and we therefore review only the BIA’s decision.
We review issues of law de novo, including questions of statutory
interpretation. De Sandoval v. U.S. Att’y Gen., 440 F.3d 1276, 1278 (11th Cir.
2006). However, following the principles of Chevron deference, when we review
the BIA’s construction of a statute that it administers, we “will defer to the BIA’s
interpretation of [the] statute if it is reasonable and does not contradict the clear intent
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of Congress.” Quinchia v. U.S. Att’y Gen., 552 F.3d 1255, 1258 (11th Cir. 2008)
(quotation omitted).
If certain criteria are satisfied, the Attorney General may adjust the status of an
alien who was “inspected and admitted or paroled into the United States” to that of
a permanent resident. 8 U.S.C. § 1255(a). Aliens admitted in TWOV status,
however, are not eligible to have their status adjusted to that of a lawfully admitted
permanent resident unless they meet specific statutory criteria not applicable here.
8 U.S.C. § 1255(c), (i); 8 C.F.R. § 245.1(b)(1) (providing that aliens that enter the
United States in transit without a visa are ineligible to apply for adjustment of status
to that of a lawful permanent resident).
“Admission” and “admitted” denote “the lawful entry of [an] alien into the
United States after inspection and authorization by an immigration officer.” 8 U.S.C.
§ 1101(a)(13)(A). The INA no longer defines the term “entry.” Prior to the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), however,
“entry” was defined as the “coming of any alien into the United States, from a foreign
port or place or from an outlying possession, whether voluntary or otherwise.” 8
U.S.C. § 1101(a)(13) (1995). Moreover, the BIA has determined that an “entry”
requires, among other things, “a crossing into the territorial limits of the United
States.” Matter of Martinez-Serrano, 25 I. & N. Dec. 151, 153 (BIA 2009) (quotation
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omitted); Farquharson v. U.S. Att’y Gen., 246 F.3d 1317, 1320-21 (11th Cir. 2001).
After thorough review of the record and the parties’ briefs, we deny the
petition. In light of the historical definition of “entry,” Suarez’s prior admission to
the United States in TWOV status when he arrived at the Houston airport, and the
absence of any intervening departure, the BIA’s conclusion that the immigration
officer’s consent to Suarez’s request to access the general airport area did not
constitute a separate “admission” to the United States under 8 U.S.C.
§ 1101(a)(13)(A) was a reasonable construction of the INA to which we must defer.
See Quinchia, 552 F.3d at 1258. And because Suarez was only admitted to the United
States in TWOV status, he was statutorily ineligible for an adjustment of his status.
8 U.S.C. § 1255(c); 8 C.F.R. § 245.1(b)(1).
PETITION DENIED.
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