Case: 13-13069 Date Filed: 09/03/2014 Page: 1 of 13
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-13069
________________________
Agency No. A046-569-593
GIOVANNY RIVAS,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_______________________
(September 3, 2014)
Before WILSON, PRYOR and ROSENBAUM, Circuit Judges.
PRYOR, Circuit Judge:
This petition for review requires us to decide whether a deportable alien who
has left and reentered the United States may obtain nunc pro tunc a waiver of
inadmissibility. See Immigration and Nationality Act § 212(h), 8 U.S.C. § 1182(h).
Case: 13-13069 Date Filed: 09/03/2014 Page: 2 of 13
The State of Florida twice convicted petitioner Giovanny Rivas of petit larceny,
which rendered him removable. But before the Department of Homeland Security
initiated removal proceedings, Rivas left the United States and then reentered on
three separate occasions without notifying border officials of his ineligibility to
reenter. After the Department initiated removal proceedings, an immigration judge
granted Rivas a waiver of inadmissibility, 8 U.S.C. § 1182(h), based on Matter of
Sanchez, 17 I. & N. Dec 218 (BIA 1980) (holding that a waiver is retroactively
available if an alien could have received one when seeking reentry at the border
but who now seeks one from within the United States). When the Department
appealed, the Board of Immigration Appeals interpreted the waiver provision, 8
U.S.C. § 1182(h), which Congress amended after the Board decided Matter of
Sanchez, to require that an alien seek a waiver of inadmissibility when he applies
for a visa, admission to the United States, or an adjustment of status. The Board
ordered Rivas removed on the ground that he failed to file an application for an
adjustment of status concurrently with his application for a waiver. Because that
interpretation of the waiver provision, as amended, was reasonable, we deny
Rivas’s petition for review.
I. BACKGROUND
Rivas is a native and citizen of Colombia, but he has continuously resided in
the United States after receiving lawful permanent resident status in 1998. The
2
Case: 13-13069 Date Filed: 09/03/2014 Page: 3 of 13
State of Florida convicted him first in January 2001 and again in July 2001 for petit
larceny. He then left the United States three times and later reentered the country
on May 12, 2004, April 3, 2005, and June 23, 2006. Each time Rivas returned to
the United States through the Miami International Airport, the border officers
neither detained nor questioned him.
In December 2007, Rivas applied for United States citizenship, but the
Department of Homeland Security denied his application based on his criminal
convictions. The Department then initiated removal proceedings because Florida
convicted Rivas of two crimes involving moral turpitude that did not arise out of a
single scheme of criminal misconduct after his lawful admission to the United
States. See 8 U.S.C. § 1227(a)(2)(A)(ii). The Department served Rivas with a
notice to appear at a removal hearing.
At the hearing Rivas conceded his removability, but filed an application for
a waiver of inadmissibility, 8 U.S.C. § 1182(h), on the ground that he could have
applied for a waiver when he sought reentry to the United States. See Sanchez, 17
I. & N. Dec 218. The Department moved to deny Rivas’s request for a waiver and
argued that the waiver provision requires an alien to seek a visa, admission to the
United States, or adjustment of status when he files for a waiver. Rivas responded
that, based on Matter of Sanchez, 17 I. & N. Dec. 218 (BIA 1980), the immigration
court could grant a waiver on a nunc pro tunc basis. In Sanchez, the Board held
3
Case: 13-13069 Date Filed: 09/03/2014 Page: 4 of 13
that a “waiver of the ground of inadmissibility may be granted in a deportation
proceeding when, at the time of the alien’s last entry, he was inadmissible because
of the same facts which form the basis of his deportability.” 17 I. & N. Dec. at 223
(quoting Matter of Tanori, 15 I & N. Dec. 566, 568 (BIA 1976)). The immigration
judge agreed with Rivas and granted him a waiver, 8 U.S.C. § 1182(h), after
concluding that Rivas’s removal would result in extreme hardship to his parents.
The Department appealed to the Board of Immigration Appeals.
The Board agreed with the Department “that since the statute does not
provide for a ‘stand alone’ waiver . . . without an application for adjustment of
status, granting a waiver nunc pro tunc would violate the plain language of the
statute and the intent of Congress.” Matter of Rivas, 26 I. & N. Dec. 130, 134 (BIA
2013). The Board concluded that Congress had abrogated its interpretation in
Matter of Sanchez: “Our precedent issued prior to the 1990 and 1996 amendments
to section 212(h), including Matter of Sanchez, is therefore no longer valid.”
Id.
And the Board vacated the decision of the immigration judge because “[s]ection
212(h), as amended, does not permit an alien in the respondent’s situation to apply
for a waiver given his ineligibility for adjustment of status.”
Id. at 134– 35.
The Board based its decision on the text of the statute, the amendments to
the text, and the decisions of the court of appeals, including our Court. Congress
had amended the waiver provision in 1990 to provide for a waiver of
4
Case: 13-13069 Date Filed: 09/03/2014 Page: 5 of 13
inadmissibility if the alien concurrently applied “for a visa, for admission to the
United States, or adjustment of status.” 8 U.S.C. § 1182(h)(2) (Supp. II 1990). The
earlier version provided for a waiver if the “Attorney General . . . has consented to
the alien’s applying or reapplying for a visa and for admission to the United
States.” 8 U.S.C. § 1182(h) (1988). The Board explained that another statute, the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L.
No. 104-208, Div. C, § 348, 110 Stat. 3009-546, 3009-639, further limited the
ability of certain lawful permanent residents to seek a waiver of inadmissibility.
Rivas, 26 I. & N. Dec. at 131 n.1. The Board next stated that its “long-standing
approach to defining the limits of section 212(h) relief has been affirmed by the
courts of appeals as a reasonable construction of the statutory provisions.”
Id. at
132; see Poveda v. U.S. Att’y Gen.,
692 F.3d 1168 (11th Cir. 2012); Cabral v.
Holder,
632 F.3d 886 (5th Cir. 2011); Klementanovsky v. Gonzales,
501 F.3d 788
(7th Cir. 2007). In particular, the Board relied on our decision in Poveda,
692 F.3d
1168, for the proposition that a “stand-alone” waiver of inadmissibility is not
available to an alien in a removal proceeding. Rivas, 26 I. & N. Dec. at 132.
The Board acknowledged that it had historically allowed for nunc pro tunc
relief in the context of certain waiver applications, but that the Supreme Court
found its approach problematic because it created a peculiar asymmetry. For
example, “deportable aliens who had traveled abroad and returned” could receive
5
Case: 13-13069 Date Filed: 09/03/2014 Page: 6 of 13
another kind of waiver, Immigration and Nationality Act § 212(c), 8 U.S.C.
§ 1182(c) (1994), which has since been repealed, “while those who had never left
could not.”
Id. at 133 (quoting Judulang v. Holder, ___ U.S. ___, ___,
132 S. Ct.
476, 480 (2011)). The Board concluded that granting nunc pro tunc relief failed to
afford the equal protection of the law because it distinguished between aliens based
on international travel.
Id. at 133–34. And it agreed with both our Court and the
Seventh Circuit that “Congress could rationally distinguish between aliens who
seek to be readmitted to the United States, such as the alien in Matter of Abosi, and
those, like the respondent, who are in the country following a lawful admission but
who are removable because they subsequently violated our criminal laws.”
Id. at
134. The Board held that the waiver provision, as amended, does not permit an
alien to apply for a waiver of inadmissibility unless he concurrently applies for an
adjustment of status. Accordingly, the Board sustained the appeal by the
Department, vacated the decision of the immigration judge, and ordered Rivas
removed from the United States.
Id. at 135.
II. STANDARDS OF REVIEW
We review only the decision of the Board of Immigration Appeals, except to
the extent that the Board “expressly adopts the [immigration judge’s] opinion.”
Nreka v. U.S. Att’y Gen.,
408 F.3d 1361, 1368 (11th Cir. 2005). “Although we lack
jurisdiction to review a decision of the Attorney General to grant or deny a waiver,
6
Case: 13-13069 Date Filed: 09/03/2014 Page: 7 of 13
8 U.S.C. § 1182(h), we have jurisdiction to review the legal question of whether
[an alien] is statutorily eligible to apply for a . . . waiver.”
Poveda, 692 F.3d at
1172 (internal quotation marks omitted).
We ordinarily review questions of statutory interpretation de novo, but we
apply a two-step test to review an agency interpretation of a statute that the agency
administers. De Sandoval v. U.S. Att’y Gen.,
440 F.3d 1276, 1278 (11th Cir. 2006);
see Chevron U.S.A., Inc. v. Natural Resource Defense Counsel, Inc.,
467 U.S. 837,
104 S. Ct. 2778 (1984). We must first determine whether “Congress has directly
spoken to the precise question at issue.” De
Sandoval, 440 F.3d at 1279 (quoting
Chevron, 467 U.S. at 842, 104 S. Ct. at 2781). If Congress clearly expressed its
purpose and the interpretation of the agency conflicts with that express purpose,
then we must set aside the agency interpretation.
Id. But if Congress has not
directly addressed the issue or if the meaning of the statute is ambiguous, we must
decide whether the interpretation by the agency is based on a permissible
construction of the statute.
Id. “To uphold an agency’s statutory interpretation, we
‘need not conclude that the agency construction was the only one it permissibly
could have adopted, or even the reading the court would have reached if the
question initially had arisen in a judicial proceeding.’”
Id. (alteration omitted)
(quoting
Chevron, 467 U.S. at 843 n.11, 104 S. Ct. at 2782 n.11). “[W]e will defer
to the Board’s interpretation of a statute if it is reasonable and does not contradict
7
Case: 13-13069 Date Filed: 09/03/2014 Page: 8 of 13
the clear intent of Congress.”
Poveda, 692 F.3d at 1172 (alteration and internal
quotation marks omitted). And “judicial deference to the Executive Branch is
especially appropriate in the immigration context.” Immigration & Naturalization
Serv. v. Aguirre-Aguirre,
526 U.S. 415, 425,
119 S. Ct. 1439, 1445 (1999).
“We review constitutional challenges . . . de novo.” Lapaix v. U.S. Att’y
Gen.,
605 F.3d 1138, 1143 (11th Cir. 2010). Classifications of immigrants,
including those in section 212 of the Immigration and Nationality Act, are subject
to minimal scrutiny.
Poveda, 692 F.3d at 1172. “Under the rational basis standard,
the [alien] bears the burden of establishing that the government regulation is
arbitrary or unreasonable[] and not rationally related to the government’s purpose.”
Yeung v. Immigration & Naturalization Serv.,
76 F.3d 337, 339 (11th Cir. 1995).
III. DISCUSSION
Our Court has already concluded that the waiver provision “is silent about
whether an alien within our borders may obtain a hardship waiver without
concurrently applying for an adjustment of status,” and we ruled in Poveda that
“[t]he new interpretation by the Board of [that provision]—that an alien within the
United States must apply for an adjustment of his status to receive a hardship
waiver—is
reasonable.” 692 F.3d at 1176. In Poveda, we considered “whether a
removable alien [was] eligible for a waiver of inadmissibility . . . if he remain[ed]
within the United States, but fail[ed] to apply for an adjustment of his status.”
Id. at
8
Case: 13-13069 Date Filed: 09/03/2014 Page: 9 of 13
1171. We concluded that he was ineligible for a waiver and held that the
interpretation by the Board that “an alien must submit an application for a . . .
waiver [of inadmissibility] concurrently with an application for a visa, admission,
or adjustment of status” was reasonable.
Id. at 1176 (internal quotation marks
omitted).
Rivas argues that his reentries to the United States distinguish him from the
petitioner in Poveda, but his argument fails. To be sure, unlike Poveda, Rivas left
and returned to the United States after committing the crimes that subjected him to
removal. But the interpretation of the statute by the Board is reasonable in the light
of the statutory amendments, even as applied to Rivas. See Cabral,
632 F.3d 886;
Klementanovsky,
501 F.3d 788. We reject Rivas’s invitation for us to reinstate the
Sanchez exception, which the Board abandoned after the intervening amendments
to the statute.
The interpretation by the Board comports with the regulation governing an
application for a waiver of inadmissibility. See 8 C.F.R. § 1245.1(f). That
regulation provides that, for aliens who apply for a hardship waiver while within
the United States, an application for an adjustment of status “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.”
Id. (emphasis added). Although Rivas could have sought a waiver when he
9
Case: 13-13069 Date Filed: 09/03/2014 Page: 10 of 13
reentered, we examine only what he has indeed sought—a waiver from within the
United States, which he may obtain solely in conjunction with an application for an
adjustment of status.
Rivas argues that the Board provided no justification for disrupting long-
settled precedent in Sanchez regarding nunc pro tunc waivers, that there is no
rational basis for distinguishing between inadmissible and deportable aliens in
removal proceedings, and that its new interpretation of the waiver provision invites
arbitrary and capricious agency action, but we disagree. The statutory amendment
alone serves as a sufficient basis for overruling Sanchez. See Margulis v. Holder,
725 F.3d 785, 788–89 (7th Cir. 2013) (explaining that the decision in Rivas “was
based on a statutory interpretation” of the waiver provision). And we agree with
the Attorney General that the interpretation by the Board adheres to the text of the
statute. To allow a nunc pro tunc waiver to a removable alien who has not
concurrently filed adjustment of status application would render Congress’s recent
addition of the “adjustment of status” language superfluous. That interpretation
also avoids the equal protection concerns that our Court expressed in
Yeung, 76
F.3d at 340, because the availability of the waiver now turns on whether the alien
seeks admission from outside the United States or an exemption from removal
from within the United States.
10
Case: 13-13069 Date Filed: 09/03/2014 Page: 11 of 13
Contrary to Rivas’s argument that no rational basis exists for overruling
Sanchez, we explained in Poveda that Congress and the Board had at least five
rational bases for drawing this classification between aliens. First, “‘Congress
might have wanted to ensure that dangerous people, including those convicted of
crimes, remain outside the United States while their applications for discretionary
relief are being
considered.’” 692 F.3d at 1177–78 (quoting
Cabral, 632 F.3d at
893). Second, Congress might have wanted to deter these aliens “from attempting
to fly under the radar” in the event that their waivers are ultimately denied. Id.
(quoting
Cabral, 632 F.3d at 893) (internal quotation marks omitted). Third,
Congress might have believed it created an incentive for aliens to self-deport at
their own expense. Id. (citing
Cabral, 632 F.3d at 893;
Klementanovsky, 501 F.3d
at 793). Fourth, “in cases where an alien either remains outside our borders or
applies for an adjustment of status while within our borders, the alien must provide
immigration authorities with information about his whereabouts and ‘immigration
authorities gain a second bite at the apple to intercept and consider otherwise
unlawful aliens.’”
Id. (alteration omitted) (quoting
Cabral, 632 F.3d at 893). Fifth,
Congress might have wanted to punish lawful permanent residents who “repaid”
that status with “a life of crime” and to require “them to self-deport before the
Attorney General considers their request for a hardship waiver.”
Id. (quoting
Klementanovsky, 501 F.3d at 792) (internal quotation marks omitted). Our review
11
Case: 13-13069 Date Filed: 09/03/2014 Page: 12 of 13
of the interpretation of the Board “is not a license for [us] to judge the wisdom,
fairness, or logic of legislative choices.” F.C.C. v. Beach Commc’n, Inc.,
508 U.S.
307, 313,
113 S. Ct. 2096, 2101 (1993). These reasons satisfy our limited review
for a rational basis.
Rivas also argues that Matter of Abosi, 24 I. & N. Dec. 204 (BIA 2007),
supports his argument, but Abosi illustrates the reasonable distinction adopted by
the Board. The Board ruled in Abosi that a deportable alien seeking readmission
after a trip abroad need not apply for an adjustment of status in conjunction with
his waiver request because he sought admission from outside the United States.
Id.
at 205–06. But Rivas never sought a waiver from outside the United States when
seeking admission; he sought a waiver after he had illegally reentered the United
States without detection by customs agents. For the reasons earlier delineated,
Congress and the Board may have many rational reasons for treating Rivas
differently from the petitioner in Abosi. Indeed, if we were to accept the position of
Rivas, we would revert to “the irrational position that an alien who after coming to
the United States had taken a trip abroad and returned and was then ordered
deported was entitled to more consideration than one who had never taken a
foreign trip after coming to the United States.”
Klementanovsky, 501 F.3d at 793–
94 (describing the circumstances in Francis v. INS,
532 F.2d 268 (2d Cir. 1976)).
12
Case: 13-13069 Date Filed: 09/03/2014 Page: 13 of 13
IV. CONCLUSION
We DENY Rivas’s petition for review.
13
