Rotimi v. Holder , 577 F.3d 133 ( 2009 )

PER CURIAM.

This case calls upon us to interpret the phrase “lawfully resided continuously” as it is used in § 212(h) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(h), and as applied on the pending appeal. Petitioner Felix Rotimi, a lawful permanent resident, conceded in the proceedings below that he is removable, but he sought a waiver of inadmissibility pursuant to § 212(h). The Board of Immigration Appeals (“BIA”) determined, based on its interpretation of “lawfully resided continuously,” that Rotimi was ineligible for such relief. For the reasons stated below, we hold that the BIA’s interpretation of “lawfully resided continuously” as it is used in § 212(h) and applied to Rotimi is reasonable. We therefore deny Rotimi’s petition for review.

Background

The facts of this case are generally undisputed. Felix Rotimi entered the United States on June 7, 1995, as a B-2 nonimmigrant visitor with permission to remain for six months. He applied for political asylum with the former Immigration and Naturalization Service (“INS”) in September 1995, prior to the expiration of his visitor’s visa. Pursuant to the regulations in effect at that time, Rotimi’s application was assigned to an asylum hearing officer for adjudication. See 8 C.F.R. § 208.2(a) (1995). On May 17, 1996, the asylum office completed its review of Rotimi’s application and referred it to an Immigration Judge (“IJ”) for adjudication in deportation proceedings.¹

In July 1996, while his deportation proceedings were on-going, but after the expiration of his visitor’s visa, Rotimi married a United States citizen, who then filed a visa petition to classify Rotimi as an “immediate relative” under INA § 201(b), 8 U.S.C. § 1151(b). In conjunction with his wife’s petition, Rotimi filed an application for adjustment of status pursuant to INA § 245, 8 U.S.C. § 1255. The visa petition was approved on November 18, 1996. Rotimi’s applications for asylum and adjustment of status then remained pending before the IJ until March 20, 1997, at which time Rotimi withdrew his asylum application in favor of pursuing adjustment of status. On May 1, 1997, pursuant to agency practice, the government “use[d] its prosecutorial discretion to terminate [Rotimi’s deportation] proceedings to permit [him] to proceed with his application for adjustment of status before the INS rather than in immigration court.”² Resp’ts Br. 6 n. 3. The INS ultimately granted this application, and Rotimi became a lawful permanent resident on August 13, 1997.

On May 22, 2002, Rotimi was convicted of attempted criminal possession of a forged instrument in the second degree, in violation of N.Y. Penal Law §§ 110.00 and 170.25, and he received a sentence of five years’ probation. In November 2002, upon his return from a brief trip abroad, Rotimi sought admission into the United States as a returning lawful permanent resident. Because Rotimi’s conviction was for a crime involving moral turpitude, his inspection was “deferred.” Thereafter, on June 13, 2003,³ the Department of Homeland Security⁴ (“DHS”) filed a Notice to Appear with the Immigration Court charging Rotimi with being inadmissible as an alien who had committed a crime involving moral turpitude. See 8 U.S.C. § 1182(a) (2) (A) (i) (I).

Appearing before the IJ, Rotimi conceded his removability and applied for a waiver of inadmissibility pursuant to INA § 212(h), 8 U.S.C. § 1182(h) (a “ § 212(h) waiver”). Section 212(h), however, provides that a lawful permanent resident is not eligible for such a waiver if, inter alia, “the alien has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien from the United States.” Rotimi argued that he had “lawfully resided continuously” in the United States for the seven years immediately preceding June 13, 2003, because he had been a nonimmigrant visitor, an applicant for asylum and adjustment of status, and a lawful permanent resident during that period.

The IJ disagreed. She explained that although Rotimi had lawfully resided in the United States for the six months following June 7, 1995, the date on which he entered the country as a nonimmigrant visitor, his lawful residence ended in December 1995 when his nonimmigrant visa expired. Furthermore, the IJ stated that Rotimi’s “filing [of] an application for asylum in [September] 1995 did not exten[d] his non-immigrant stay in the United States [after his visa had expired] nor did it confer on [Rotimi] any lawfulness in his continued residence in the United States.” Finally, the IJ ruled that Rotimi’s application for adjustment of status “d[id] not make his overstayed time in the United States legal.” The IJ therefore concluded that Rotimi’s lawful residence in this country for purposes of § 212(h) began on August 13, 1997, the date he became a lawful permanent resident, thereby making him statutorily ineligible for a § 212(h) waiver.

Rotimi appealed this decision to the BIA, which affirmed the IJ in a nonprecedential decision by a single member. The BIA stated that “[a] period of lawful residence is one in which an alien has affirmatively been accorded the right or privilege of residing here and abides by the rules associated with that right or privilege.” Although the BIA recognized that Rotimi had filed his asylum application prior to the expiration of his nonimmigrant visa, it concluded that this “did not make [Rotimi’s] continued residence in this country ‘lawful’ in any legal sense.” Accordingly, the BIA held that Rotimi was statutorily ineligible for a § 212(h) waiver.

Rotimi filed a petition for review of the BIA’s decision, and this Court heard oral argument in the" pase on December 11, 2006. Thereafter, we granted Rotimi’s petition, vacated the BIA’s decision, and remanded the case to give the BIA an opportunity to provide a precedential interpretation of the phrase “lawfully resided continuously.” See Rotimi v. Gonzales, 473 F.3d 55, 58 (2d Cir.2007). In particular, we explained that

in construing “lawfully resided continuously” as used in § 212(h), we would benefit from the BIA’s consideration of the term lawful- — including its use in relation to asylum seekers and adjustment applicants — in other provisions of the INA and the implementing regulations, along with Congress’s intent in providing for a § 212(h) waiver. In reviewing the BIA’s definition of lawful in § 212(h), we would also benefit from an explanation of the source of the definition and analysis as to whether an asylum seeker or an adjustment applicant meets that definition of “lawful.”

Id. The panel retained jurisdiction to decide any appeal following remand. See id.

On remand, the BIA issued a precedential opinion in which it interpreted the phrase “lawfully resided continuously.” See In re Rotimi, 24 I. & N. Dec. 567 (B.I.A.2008). At the outset of its opinion, the BIA explained that it was not attempting to adopt “a comprehensive definition of this statutory language” because an expansive interpretation was not necessary to resolve this particular case. See id. at 568, 571. Rather, the BIA addressed the specific question of “whether [Rotimi’s] 13 months as an applicant for adjustment of status and his earlier (and overlapping) time as an applicant for asylum count toward establishing that he has ‘lawfully resided continuously’ for 7 years before his removal proceedings were initiated.” Id. at 570.

As requested, the BIA’s analysis set forth the rationale for its interpretation of § 212(h). As an initial matter, the BIA acknowledged that the phrase “lawfully resided continuously” is unique to § 212(h) and that its meaning is ambiguous. See id. at 571. Although it recognized the “range of possible constructions it may be given,” the BIA reasoned that because “Congress has used the phrase ‘lawfully resided’ in a technical immigration provision designed to waive criminal grounds of inadmissibility set forth in the Immigration and Nationality Act[,] ... the meaning of the phrase needs to be derived in the context of the immigration laws.” Id. The BIA then identified four specific sources upon which it relied in construing the statute.

First, the BIA examined the legislative history of § 212(h), which provides in relevant part that the “managers intend that the provisions governing continuous residence set forth in INA section 240A as enacted by this legislation shall be applied as well for purposes of waivers under INA section 212(h).” H.R.Rep. No. 104-828, at 228 (1996) (Conf.Rep.). The BIA stated that this history, “while not extensive, lends some support to the proposition that an alien’s application for lawful status or other benefit that might not entail a ‘status’ must actually be approved before his or her residence in this country will be considered lawful for section 212(h) purposes.” In re Rotimi, 24 I. & N. Dec. at 572.

Second, the BIA looked to INA § 101(a)(20), which defines the phrase “lawfully admitted for permanent residence” to mean “the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.” 8 U.S.C. § 1101(a)(20). The agency asserted that this supported the view that an alien does not become a lawful permanent resident simply by applying for that status. See In re Rotimi, 24 I. & N. Dec. at 573-74.

Third, the BIA relied on the Merriam-Webster’s Collegiate Dictionary, which defines “lawful” as “being in harmony with the law” or “constituted, authorized, or established by the law.” Id. at 574 (internal quotation marks omitted). From this, the BIA concluded that for an alien’s residence to be lawful, “it must be authorized or in harmony with the law, which requires some formal action beyond a mere request for authorization or the existence of some impediment to actual physical removal.” Id.

Fourth, the BIA examined case law, which it contended draws an important distinction between merely being an applicant for a privilege to remain in this country and actually being granted that privilege. See id. at 574-76. The BIA acknowledged that two of the cases upon which it relied—In re Lok, 18 I. & N. Dec. 101 (B.I.A.1981), and this Court’s decision in Tim Lok v. INS, 681 F.2d 107 (2d Cir.1982)—analyzed the “lawful domicile” requirement of former INA § 212(c). It explained, however, that although § 212(h) contains no domicile requirement,

based on the long-standing construction of the term “lawful” in the Lok decisions, we think that there is a distinction to be drawn between permitting an alien’s presence in this country for a limited purpose and legalizing his or her stay. It is this distinction that provides the primary basis for our refusal to count [Rotimi’s] time spent as an applicant for benefits as periods during which he “lawfully resided” here for purposes of a section 212(h) waiver.

In re Rotimi, 24 I. & N. Dec. at 575-76.

In light of these sources, the BIA concluded that any lawfulllss associated with Rotimi’s residence in the United States ended when his nonimmigrant visa expired in December 1995. Id. at 577. Furthermore, it stated that Rotimi’s “submission of asylum and adjustment applications did not change the fact that his status as a nonimmigrant visitor had ended. Nor did filing such applications give [Rotimi] lawful residence here, as he was merely an applicant for benefits with, at best, a temporary reprieve while his applications were adjudicated.” Id. Accordingly, the BIA concluded that Rotimi’s continuous lawful residence began on August 13, 1997, when he became a lawful permanent resident, and it held that he was statutorily ineligible for a § 212(h) waiver because his lawful residence was fourteen months short of the required seven years.

Following the issuance of the BIA’s opinion, Rotimi filed a motion for this Court to restore the mandate in this case and consider the question raised in his initial petition for review — whether the BIA erred by holding that Rotimi had not “lawfully resided continuously” in the United States for a period of at least seven years immediately preceding June 13, 2003. It is to this question that we now turn.

Discussion

Rotimi was deemed inadmissible because he had been convicted of committing a crime involving moral turpitude. See 8 U.S.C. § 1182(a)(2)(A)(i)(I). In such circumstances, the Attorney General has discretion to waive inadmissibility where, as here, the alien is the spouse of a United States citizen, and “the alien’s denial of admission would result in extreme hardship” to that United States citizen spouse. Id. § 1182(h)(1)(B). Such a waiver is not available, however, to an alien “who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if ... the alien has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien from the United States.” Id. § 1182(h).

Rotimi’s removal proceedings were initiated on June 13, 2003. Thus, to be eligible for a § 212(h) waiver, he must have lawfully resided continuously in the United States since at least June 13, 1996. There is no dispute that Rotimi lawfully resided in the United States after August 13, 1997, the date on which he became a lawful permanent resident. Consequently, our analysis focuses on whether Rotimi lawfully resided here between June 13, 1996, and August 13,1997.

In considering this question, we are guided by the familiar two-step analysis set forth in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See G & T Terminal Packaging Co. v. U.S. Dep’t of Agric., 468 F.3d 86, 95 (2d Cir.2006) (“It is firmly established that we review under the Chevron standard an agency’s binding and generally applicable interpretation of a statute that it is charged with administering when that interpretation is adopted in the course of a formal adjudicatory proceeding.” (citing United States v. Mead Corp., 533 U.S. 218, 230 n. 12, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001))); see also Freeman v. Burlington Broadcasters, Inc., 204 F.3d 311, 322 (2d Cir.2000). Under the Chevron analysis, we first ask “whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778. If, however, “the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Id. at 843, 104 S.Ct. 2778. We “need not conclude that the agency construction was the only one it permissibly could have adopted to uphold the construction, or even the reading the court would have reached if the question initially had arisen in a judicial proceeding.” Id. at 843 n. 11, 104 S.Ct. 2778. Rather, the Court will defer to the agency’s interpretation as long as that interpretation is “ ‘reasonable.’ ” Cohen v. JP Morgan Chase & Co., 498 F.3d 111, 116 (2d Cir.2007) (quoting Chevron, 467 U.S. at 844, 104 S.Ct. 2778).

The first step of the Chevron analysis is straightforward here. Congress has not defined the phrase “lawfully resided continuously” anywhere in the INA. Given the range of possible interpretations that might apply to it, we agree with the BIA that this phrase is ambiguous. See In re Rotimi, 24 I. & N. Dec. at 571; see also Quinchia v. U.S. Attorney Gen., 552 F.3d 1255, 1259 (11th Cir.2008) (“[W]e find that the ‘lawfully resided continuously’ requirement in 212(h) is ambiguous”); Yepez-Razo v. Gonzales, 445 F.3d 1216, 1218 (9th Cir.2006) (“We observe at the outset that the precise meaning of ‘lawfully resided continuously’ in section 212(h) is unclear”). We therefore proceed to the second step of the Chevron analysis.

The BIA concluded that Rotimi “did not ‘lawfully’ reside in the United States during those periods in which he was an applicant for asylum or for adjustment of status and lacked any other basis for claiming lawful residence.” In re Rotimi, 24 I. & N. Dec. at 568; see also id. at 574 (“The lawfulness of an alien’s residence stems from the grant of a specific privilege to stay in this country, not the mere fact that he or she is an applicant for such a privilege.”). The Chevron framework sharply constrains this Court. As noted above, even if we would have interpreted the statute differently if the question had arisen first in a judicial proceeding, we are without authority to substitute that interpretation for an agency’s, if the agency’s view is reasonable. Given the circumstances of this case, we hold that the BIA’s interpretation of § 212(h) is reasonable and therefore defer to it. See Quinehia, 552 F.3d at 1259. Consequently, Rotimi is ineligible for a § 212(h) waiver because he did not lawfully reside continuously in the United States for the period between June 13, 1996, and August 13,1997.⁵

Conclusion

For the foregoing reasons, Rotimi’s petition for review is DENIED.

1 . The BIA characterized this as a denial of Rotimi's asylum application. See In re Rotimi, 24 I. & N. Dec. 567, 568 (B.I.A.2008) ("On May 17, 1996, [Rotimi's] asylum application was denied and the DHS initiated deportation proceedings against [him].''). In fact, the asylum officer lacked the authority to deny Rotimi's application after Rotimi's non-immigrant visa expired, see 8 C.F.R. § 208.14(b)(2) (1995), a point conceded by the government, see Letter from Dione M. Enea, Special Assistant U.S. Attorney, to Catherine O'Hagan Wolfe, Clerk of the Court (Mar. 31, 2009) ("Enea Letter”), at 2. Thus, the proper way to characterize the asylum officer's action is as a referral. See In re L-K, 23 I. & N. Dec. 677, 680 n. 8 (B.I.A.2004).

2 . Once an order to show cause had been issued in Rotimi's case, the IJ acquired exclusive jurisdiction to adjudicate Rotimi's application for adjustment of status in deportation proceedings. See In re Roussis, 18 I. & N. Dec. 256, 257 (B.I.A.1982) (citing 8 C.F.R. § 245.2(a)(1)). The only way that the IJ could terminate those proceedings once they had started was upon request of the District Director of the INS. Id. at 258 (citing 8 C.F.R. § 242.7).

3 . There is a discrepancy regarding the date on which Rotimi’s removal proceedings commenced. When Rotimi’s case was originally before the agency, both the IJ and the BIA found that removal proceedings started on June 9, 2003, the date on which the Notice to Appear was issued. On remand, the BIA stated that the relevant date was June 13, 2003, the date on which the Notice to Appear was filed with the Immigration Court. We will assume the correct date is June 13, 2003, for purposes of this opinion, although we note that our analysis and conclusion would not change if the correct date were in fact June 9, 2003.

4 . The INS was reconstituted on March 1, 2003, as the Bureau of Immigration and Customs Enforcement and the Bureau of United States Citizenship and Immigration Services, both within the Department of Homeland Security. See Rashid v. Mukasey, 533 F.3d 127, 129 n. 2 (2d Cir.2008).

5 . We note that the BIA did not attempt to craft an interpretation of “lawfully resided continuously” that would apply to all cases in which questions about the lawfulness of an alien’s residence might arise. See In re Rotimi, 24 I. & N. Dec. at 568, 571. Thus, we need not consider whether a lawful status might be accorded an alien if he or she applied for a lawful status early in a substantial period of some other lawful status, for example, three months into a two year period for which an employment visa was issued, and the BIA inexcusably postponed decision on the application until after the expiration of the initial lawful status.