George Nastase v. William Barr, U. S. Atty Gen ( 2020 )

Case: 18-60264 Document: 00515473690 Page: 1 Date Filed: 07/01/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 1, 2020
No. 18-60264
Lyle W. Cayce
Clerk
GEORGE EDUARD NASTASE,
Petitioner,
v.
WILLIAM P. BARR, U. S. ATTORNEY GENERAL,
Respondent.
Petitions for Review of the Orders of the
Board of Immigration Appeals
Before ELROD, WILLETT, and OLDHAM, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
Romanian native George Eduard Nastase petitions for review of the
Board of Immigration Appeals (BIA) decisions denying his applications for
adjustment of immigration status and for a waiver of inadmissibility. The first
petition is DENIED and the second petition is DENIED in part and
DISMISSED in part for lack of jurisdiction.
I.
Nastase was born in 1985 in Romania. In 1986, he was admitted to the
United States as a refugee in the care of his parents. After his parents divorced
eight years later, Nastase lived with his mother and siblings. In 1999, his
mother became a naturalized citizen.
Case: 18-60264 Document: 00515473690 Page: 2 Date Filed: 07/01/2020
No. 18-60264
In 2006, Nastase applied for adjustment of his immigration status under
8 U.S.C. § 1159(a), which (if granted) would cause him to “be regarded as
lawfully admitted to the United States for permanent residence as of the date
of [his] arrival into the United States.” That application was denied in 2012
on the basis that Nastase’s criminal record rendered him inadmissible.
Specifically, the United States Citizenship and Immigration Services (USCIS)
reasoned that his 2007 conviction for delivery of a simulated controlled
substance made him ineligible for adjustment of status under 8 U.S.C.
§ 1182(a)(2)(C)(i), which states that “[a]ny alien who . . . the Attorney General
knows or has reason to believe . . . is or has been an illicit trafficker in any
controlled substance . . . is inadmissible.” Nastase committed miscellaneous
other crimes in 2012 and the years following: theft, credit card abuse, and
criminal trespass—all misdemeanors—and felony possession of less than one
gram of a controlled substance (methamphetamine).
Those crimes landed Nastase in the Dallas County Jail in 2012, where
he was identified by Department of Homeland Security (“DHS”) agents. DHS
then instigated removal proceedings against him. Because Nastase was not in
federal custody at the time, the Immigration Judge (IJ) administratively closed
the proceedings.
When the removal proceedings restarted in 2017, DHS alleged two bases
of removability: (1) that Nastase had been “convicted of two or more crimes
involving moral turpitude” under 8 U.S.C. § 1227(a)(2)(A)(ii), and (2) that he
had been convicted of a crime “relating to a controlled substance” under
§ 1227(a)(2)(B)(i). Nastase defended the charges by arguing that he had gained
derivative United States citizenship when his mother became a citizen. See 8
U.S.C. § 1431(a). As all this was taking place, Nastase again applied for an
adjustment of status under § 1159(a). This time, mindful of the denial of his
2
Case: 18-60264 Document: 00515473690 Page: 3 Date Filed: 07/01/2020
No. 18-60264
first application on inadmissibility grounds, he also applied for a discretionary
waiver of inadmissibility under § 1159(c).
The IJ rejected Nastase’s citizenship argument, concluding that his
admission as a refugee did not meet the derivative citizenship statute’s
requirement of “lawful admission for permanent residence.” 8 U.S.C.
§ 1431(a)(3). The IJ also determined that Nastase was inadmissible under
§ 1182(a)(2)(A)(i)(II) and denied him a waiver after weighing a variety of
equitable factors and finding that they ultimately weighed against him. Given
Nastase’s inadmissibility, the IJ denied his application for an adjustment of
status.
Nastase appealed these determinations to the BIA, which dismissed the
appeal on essentially the same reasoning provided by the IJ. Nastase
proceeded to file a petition for review of the BIA’s citizenship decision in this
court, while simultaneously pursuing a motion for reconsideration of the
waiver decision at the BIA. When the BIA denied the motion, Nastase filed an
additional petition for review of that denial. The petitions were consolidated.
See 8 U.S.C. § 1252(b)(6). We take them in turn.
II.
In his first petition for review, Nastase argues that he is not removable
because his childhood admission as a refugee was a “lawful admission for
permanent residence” and he thereby received derivative United States
citizenship when his mother became a citizen in 1999. We disagree.
A.
We have jurisdiction to review Nastase’s citizenship claim under
§ 1252(b)(5)(A). See also 8 U.S.C. § 1252(a)(1) (jurisdiction over removal
orders). The question of whether refugee status equates to “lawful admission
for permanent residence” (“LPR”) status under the derivative citizenship
3
Case: 18-60264 Document: 00515473690 Page: 4 Date Filed: 07/01/2020
No. 18-60264
statute is a legal one that the court reviews de novo. See Bustamante-Barrera
v. Gonzales, 447 F.3d 388, 393 (5th Cir. 2006).
LPR status is “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 derivative citizenship statute bestows citizenship on
foreign-born children who meet three requirements:
(1) At least one parent of the child is a citizen of the United States,
whether by birth or naturalization. (2) The child is under the age
of eighteen years. (3) The child is residing in the United States in
the legal and physical custody of the citizen parent pursuant to a
lawful admission for permanent residence.
8 U.S.C. § 1431(a) (emphasis added). Nastase “has the burden of proving that
he qualifies for naturalization, and he must do so in the face of the Supreme
Court’s mandate that we resolve all doubts ‘in favor of the United States and
against’ those seeking citizenship.” Bustamante-Barrera, 447 F.3d at 394–95
(quoting Berenyi v. Dist. Dir., I.N.S., 385 U.S. 630, 637 (1967)); see also I.N.S.
v. Pangilinan, 486 U.S. 875, 884 (1988) (courts considering naturalization
claims must ensure “strict compliance with the terms of an authorizing
statute”).
The Fifth Circuit has not decided whether Chevron deference applies to
the BIA’s interpretation of the derivative citizenship statute. See Bustamante-
Barrera, 447 F.3d at 393–94 (declining to decide whether Chevron deference
applies to § 1432, the now-repealed precursor to § 1431). However, the Fifth
Circuit has concluded that Chevron deference never applies to non-
precedential BIA decisions. See Dhuka v. Holder, 716 F.3d 149, 154–56 (5th
Cir. 2013). The BIA’s decision in this case has not been designated as
precedential. A non-precedential BIA decision is given whatever weight is
4
Case: 18-60264 Document: 00515473690 Page: 5 Date Filed: 07/01/2020
No. 18-60264
appropriate based on “the thoroughness evident in its consideration, the
validity of its reasoning, its consistency with earlier and later pronouncements,
and all those factors which give it power to persuade.” Skidmore v. Swift &
Co., 323 U.S. 134, 140 (1944); see Dhuka, 716 F.3d at 156. In any event, this
case does not turn on Chevron deference because our disposition would be the
same whether we applied it or not.
B.
To have met the requirements for derivative citizenship in 1999, as he
claims, Nastase must have then been “residing in the United States in the legal
and physical custody of the citizen parent pursuant to a lawful admission for
permanent residence.” 1 8 U.S.C. § 1431(a)(3) (emphasis added). He was not.
Nastase admits that no court in any jurisdiction has ever construed
refugee status to include LPR status, and that the admission of refugees has
traditionally been termed “conditional.” Oral Argument at 8:58; see also In re
D-K-, 25 I. & N. Dec. 761, 767–68 (B.I.A. 2012) (discussing “the conditional
nature of a refugee’s status” and noting that “refugee admission is
impermanent and subject to contingencies”). Nevertheless, he argues that his
status as a refugee made him a permanent resident in the sense that he could
reside in the United States “indefinite[ly] unless and until terminated.” Thus,
he says, all refugees meet the statutory definition of “permanent”: “The term
‘permanent’ means a relationship of continuing or lasting nature, as
distinguished from temporary, but a relationship may be permanent even
though it is one that may be dissolved eventually at the instance either of the
1 There does not appear to be any dispute that Nastase met the other requirements of
the derivative citizenship statute in 1999: his mother became a naturalized United States
citizen when he was under 18 years old and residing in his mother’s custody on American
soil.
5
Case: 18-60264 Document: 00515473690 Page: 6 Date Filed: 07/01/2020
No. 18-60264
United States or of the individual, in accordance with law.” 8 U.S.C.
§ 1101(a)(31).
This contention is unpersuasive. Even assuming arguendo that
Nastase’s construal of these definitional statutes “is not inconsistent with the
language of th[e] provision[s] examined in isolation, statutory language cannot
be construed in a vacuum.” Davis v. Mich. Dep’t of Treasury, 489 U.S. 803, 809
(1989). Indeed, “[i]t is a fundamental canon of statutory construction that the
words of a statute must be read in their context and with a view to their place
in the overall statutory scheme.” Id.As the Attorney General points out, the rest of the statutory scheme
evinces a clear distinction between refugee status and LPR status. Section
1159(a)(1)(C), for instance, discusses “alien[s] who ha[ve] been admitted to the
United States” as refugees “who ha[ve] not acquired permanent resident
status,” a category of persons that would not exist if refugees were already
LPRs. In fact, that section requires refugees “to apply for adjustment to LPR
status after being present in the United States for one year” if they have not
already acquired LPR status. Ali v. Lynch, 814 F.3d 306, 313 (5th Cir. 2016).
Nastase’s interpretation would render this provision meaningless, violating
the “principle that when interpreting a statute, it is necessary to give meaning
to all its words and to render none superfluous.” United States v. Rayo-Valdez,
302 F.3d 314, 318 (5th Cir. 2002). Section 1159(a) is not the only provision
that would make little sense if we accepted Nastase’s view. See, e.g., 8 U.S.C.
§ 1252(e)(4) (referring separately to aliens who are “lawfully admitted for
permanent residence” and those who are “admitted as a refugee”).
Nastase argues that his reading would not render § 1159(a) superfluous
because a status adjustment under that section would have the functions of
“produc[ing] the resident card necessary for international travel, employment
authorization and other purposes” and catching refugees who have “become
6
Case: 18-60264 Document: 00515473690 Page: 7 Date Filed: 07/01/2020
No. 18-60264
inadmissible following their initial admission.” Not so. As we have previously
noted, § 1159(a)(1) expressly excludes refugees who have already “acquired
permanent resident status” from obtaining adjustment under that subsection.
See also Ali, 814 F.3d at 313. If refugees were automatically permanent
residents, § 1159(a)(1) would lack a function. Nastase’s interpretation
“renders the [statutory provision] mere surplusage, a result that we cannot
accept.” In re McBryde, 120 F.3d 519, 525 (5th Cir. 1997).
As Nastase admitted in the immigration proceedings, he was only
“conditionally”—not permanently—“admitted as a [r]efugee.” As a result, he
has not met the requirements of the derivative citizenship statute. His first
petition for review is therefore DENIED. 2
III.
In his second petition for review, Nastase argues that he was improperly
denied the waiver of inadmissibility necessary to permit him to adjust to LPR
status under § 1159(a). 3 Some of Nastase’s arguments invite us to review
decisions outside our jurisdiction. To the extent Nastase makes a reviewable
challenge, it lacks merit.
2 In his reply brief, Nastase appears to argue that the Government should be equitably
estopped from removing him because USCIS erroneously denied his earlier application for
adjustment of status in 2012. He points out that USCIS treated his conviction for delivery
of a simulated controlled substance as making him inadmissible as “an illicit trafficker in a[]
controlled substance” under § 1182(a)(2)(C)(i), despite BIA precedent rejecting that
proposition. See In re Sanchez-Cornejo, 25 I. & N. Dec. 273, 274–75 (B.I.A. 2010) (finding
that convictions under Texas’s “delivery of a simulated controlled substance” statute do not
qualify as “illicit trafficking in a controlled substance” under the Immigration and
Nationality Act). As an initial matter, “[a]n appellant abandons all issues not raised and
argued in [his] initial brief on appeal.” Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994).
Moreover, any prejudice accruing to Nastase because of the denial of his original application
for adjustment of status was cured when he renewed his application during the proceedings
at issue in this case. His renewed application was denied on different grounds, as explained
infra.
3 Nastase does not contest that his criminal record makes him inadmissible and thus
that he cannot be adjusted to LPR status without a waiver.
7
Case: 18-60264 Document: 00515473690 Page: 8 Date Filed: 07/01/2020
No. 18-60264
A.
The Immigration and Nationality Act permits the Attorney General, in
his discretion, to waive an alien’s inadmissibility “for humanitarian purposes,
to assure family unity, or when it is otherwise in the public interest.” 8 U.S.C.
§ 1159(c); see Jean v. Gonzales, 452 F.3d 392, 397 (5th Cir. 2006) (“The
Attorney General has broad discretionary authority to grant or deny a
waiver.”).
In general, we lack jurisdiction to review the Attorney General’s
discretionary immigration decisions. See Kucana v. Holder, 558 U.S. 233, 245
(2010); 8 U.S.C. § 1252(a)(2)(B)(ii) (proscribing judicial review of “decision[s]
and action[s] of the Attorney General . . . the authority for which is specified
under this subchapter to be in [his] discretion”). However, we have jurisdiction
to review those decisions to the extent the appeal involves “constitutional
claims or questions of law.” Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1068
(2020) (quoting 8 U.S.C. § 1252(a)(2)(D)). One such reviewable question is
whether a BIA decision was made ultra vires. See Jean, 452 F.3d at 396; see
also City of Arlington v. FCC, 569 U.S. 290, 298 (2013) (an agency acts ultra
vires when it “go[es] beyond what Congress has permitted it to do”).
The BIA’s denial of a motion for reconsideration is reviewed “under a
highly deferential abuse-of-discretion standard.” Zhao v. Gonzales, 404 F.3d
295, 303 (5th Cir. 2005). This means that courts will only disturb such a ruling
if it is “capricious, racially invidious, utterly without foundation in the
evidence, or otherwise so irrational that it is arbitrary rather than the result
of any perceptible rational approach.” Id. (quoting Pritchett v. I.N.S., 993 F.2d
80, 83 (5th Cir. 1993)).
B.
First, Nastase contends that the BIA acted ultra vires by applying a
“heightened standard” to his waiver application. He analogizes to our decision
8
Case: 18-60264 Document: 00515473690 Page: 9 Date Filed: 07/01/2020
No. 18-60264
in Jean, where we determined that the Attorney General acted within his
authority in applying a heightened standard to waiver applications from aliens
who had “engage[d] in violent criminal acts.” 452 F.3d at 397 (quoting In re
Jean, 23 I. & N. Dec. 373, 384 (B.I.A. 2002)). Because he is not a violent
criminal, Natase argues, a heightened standard is inappropriate here.
This argument fails because the BIA did not apply a heightened
standard to Nastase. In Jean, we noted that the Attorney General required
violent criminals to show that “extraordinary circumstances” supported their
waiver application—a requirement not imposed on typical applicants. Id.(quoting In re Jean, 23 I. & N. Dec. at 397). No such requirement was imposed
on Nastase. 4 Instead, the BIA applied the normal standard, “balancing the
various humanitarian, family unity and public interest considerations
presented.” See 8 U.S.C. § 1159(c). Nastase does not persuasively explain in
his briefing why he believes a heightened standard was imposed on him,
merely stating that the proposition “[t]hat a ‘heightened standard’ has been
applied to [him] can hardly be denied.” Nastase does cite to his motion to
reconsider at the BIA, where he compared the equities in his case to the
equities in other cases and argued that his waiver application “involved less
grave crimes and presents greater equities” than the applications in those
other cases. 5 Simply put, Nastase’s contention that the BIA should have
weighed the equities more in his favor does not establish that the BIA applied
4Indeed, after explaining the Jean standard for violent and dangerous criminals, the
IJ found it inapplicable, noting that Nastase “has not committed a ‘violent or dangerous’
crime.” The BIA agreed.
5 For instance, Nastase states that he came to this country when he was only one year
old and has been here for thirty years. He does not speak Romanian, and most of his relatives
live in the United States. And he allegedly would have become a citizen of the United States
as a child had his mother known at the time that she needed to submit a status-adjustment
application for him.
9
Case: 18-60264 Document: 00515473690 Page: 10 Date Filed: 07/01/2020
No. 18-60264
a heightened standard to his waiver application and thereby acted ultra vires.
Thus, to the extent Nastase’s petition presents the legal issue of whether
the BIA applied that heightened standard, the petition must be denied. To the
extent Nastase’s petition presents the issue of whether the BIA should have
weighed the equities of his case more favorably to him, we are without
jurisdiction to consider it for the reasons explained infra. Nastase may not—
merely by “phras[ing] his argument in legal terms”—“use[] those terms to cloak
a request for review of the BIA’s discretionary decision, which is not a question
of law.” Delgado-Reynua v. Gonzales, 450 F.3d 596, 599–600 (5th Cir. 2006).
Turning now to the second issue he raises in his second petition, Nastase
argues that the BIA improperly denied his motion for reconsideration when he
had in fact identified a legal error in its decision: failing to consider factors
relevant to one of the statutory grounds for a waiver, “humanitarian purposes.”
See 8 U.S.C. § 1159(c) (permitting the Attorney General to waive
inadmissibility “for humanitarian purposes, to assure family unity, or when it
is otherwise in the public interest”). He argues that this error is clear because
the BIA did not specifically mention certain alleged facts that might weigh in
his favor on that factor, such as his “young age at the time of his admission”
and “his inability to speak the language of his native country.”
But whether or not the BIA considered each of the facts Nastase alleged,
we are without jurisdiction to review its discretionary decision. The statute
permits the Attorney General to provide a waiver “for humanitarian purposes,”
but does not require it. As we have held in an analogous context, the
“conten[tion] that the [Attorney General] did not consider all of the relevant
factors” in denying discretionary relief “does not involve a constitutional claim
or a question of law; therefore, this court does not have jurisdiction to review
[the] claim.” Sung v. Keisler, 505 F.3d 372, 377 (5th Cir. 2007); see also Sattani
v. Holder, 749 F.3d 368, 372 (5th Cir. 2014) (“Petitioners’ claim that the IJ did
10
Case: 18-60264 Document: 00515473690 Page: 11 Date Filed: 07/01/2020
No. 18-60264
not properly take into account all the hardship factors merely asks this Court
to replace the IJ’s evaluation of the evidence with a new outcome, which falls
squarely within the jurisdictional bar of 8 U.S.C. § 1252(a)(2)(B).”).
The Supreme Court’s recent decision in Guerrero-Lasprilla does nothing
to change this analysis. In that case, the Supreme Court took up the question
of how to distinguish reviewable legal issues from unreviewable factual issues.
See Guerrero-Lasprilla, 140 S. Ct. at 1068. The result was holding that “the
application of a legal standard to undisputed or established facts” is a
“question[] of law” under § 1252(a)(2)(D) and is therefore within the
jurisdictional compass of the federal courts of appeals. Id. Our cases
disclaiming jurisdiction over the BIA’s decision whether to grant a § 1159(c)
waiver of inadmissibility are not based on whether that decision is too “factual”
to be a “question[] of law”—rather, they are based on the simple observation
that the Attorney General’s power to grant a § 1159(c) waiver is purely
discretionary. See Jean, 452 F.3d at 396. Because Guerrero-Lasprilla does not
disturb that precedent, it does not lend support to Nastase’s arguments in this
petition. 6
IV.
For the reasons stated, Nastase’s first petition for review is DENIED.
His second petition for review is DENIED in part and DISMISSED in part for
lack of jurisdiction.
6 Even assuming arguendo that Guerrero-Lasprilla did disturb our precedent on a
claim such as this, Nastase fails to show that the BIA’s decision was “capricious, racially
invidious, utterly without foundation in the evidence, or otherwise so irrational that it is
arbitrary rather than the result of any perceptible rational approach.” Zhao, 404 F.3d at 303(quoting Pritchett, 993 F.2d at 83). There is no indication that the BIA failed to consider
Nastase’s humanitarian factors in its decision; the BIA expressly stated that its decision
reflected a “balancing” of “the various humanitarian, family unity and public interest
considerations presented in this matter.”
11