Atunnise, Christiana v. Mukasey, Michael B. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 06-4008 & 07-1287
CHRISTIANA O. ATUNNISE,
Petitioner,
v.
MICHAEL B. MUKASEY, Attorney General
of the United States,
Respondent.
____________
Petitions for Review of Orders of the
Board of Immigration Appeals.
No. A98-750-662
____________
ARGUED SEPTEMBER 28, 2007—DECIDED APRIL 30, 2008
____________
Before ROVNER, WOOD, and EVANS, Circuit Judges.
ROVNER, Circuit Judge. This case highlights the obstacles
that foreigners face in navigating arcane procedures
intended to reunite them with their American-citizen
spouses in the United States. Here the apparent hurdle
was a form that only a consummate bureaucrat could
earnestly defend. Christiana Atunnise, a Nigerian citizen,
initially tried to sidestep the rules in 1998 when she used
a fraudulent passport in a misguided attempt to join her
husband, a Nigerian citizen who was living lawfully
in Chicago. She was caught at the airport and sent back
2 Nos. 06-4008 & 07-1287
to Nigeria the very next day. As a consequence, Atunnise
was statutorily barred from entering the United States
for a period of five years, and even then she would for-
ever need the Attorney General’s permission—a “waiver
of inadmissibility” in immigration jargon—to gain admis-
sion. Atunnise waited out the five-year period, and soon
after, in 2004, her husband became a United States citizen.
He promptly petitioned immigration authorities for
permission to bring Atunnise and their five-year-old
daughter to live with him in the United States, and after
that petition was approved, Atunnise went to the United
States consulate in Lagos, Nigeria, to obtain a visa. The
consular officer gave her a visa, but because of the man-
ner in which Atunnise answered one of the questions on
the visa application, she was not told that consular offi-
cers are not supposed to give someone in her position a
visa without a waiver of inadmissibility. Atunnise main-
tains that she was confused by the application, which
we agree would confuse anyone. When Atunnise took her
visa and flew to the United States with her daughter in
April 2006, an immigration officer at O’Hare International
Airport realized that she also needed, but did not have,
a waiver of inadmissibility. She has been in jail ever
since, all because immigration officials have taken the
position that even though she might have qualified for
a waiver of inadmissibility, she has lost her opportunity
to apply. That position, we conclude, is premised on a
mistaken view of the law. Accordingly, we remand her
case to the Board of Immigration Appeals for further
proceedings.
I. Background
After Atunnise’s husband became a United States citizen
in 2004, he filed a Petition for Alien Relative, Form I-130,
Nos. 06-4008 & 07-1287 3
seeking permission to bring Atunnise and their daughter,
Ifeoluwa, to join him in Chicago. An I-130 petition allows
a citizen or permanent resident to request that the De-
partment of Homeland Security (“DHS”) classify certain
alien family members, including a spouse and children,
as “immediate relatives” who thus become eligible for
immigrant visas without regard to normal quotas. DHS
approved the I-130 petition in December 2005. Three
months later, in March 2006, Atunnise went to the Ameri-
can consulate in Lagos to apply for a K-3 nonimmigrant
visa. A K-3 visa allows a beneficiary of an I-130 petition to
enter the United States to await the availability of an
immigrant visa. See 8 U.S.C. § 1101(a)(15)(K)(ii). Atunnise
also applied for an equivalent visa, a K-4, for her daughter.
See id. § 1101(a)(15)(K)(iii).
The general, nonimmigrant-visa application given to
Atunnise, Form DS-156, includes a series of questions in
bulletpoint form. Although most of the bulletpoints
incorporate multiple questions, and all of them include
compound questions, the applicant must respond to each
bulletpoint by checking a single box “yes” or “no.” There
is no means of giving independent answers to the varied
questions within the same bulletpoint. One of the
bulletpoints poses the following questions:
Have you ever been refused admission to the U.S.,
or been the subject of a deportation hearing, or sought
to obtain or assist others to obtain a visa, entry into
the U.S., or any other U.S. immigration benefit by
fraud or willful misrepresentation or other unlawful
means? Have you attended a U.S. public elementary
school on student (F) status or a public secondary
school after November 30, 1996 without reimbursing
the school?
4 Nos. 06-4008 & 07-1287
The form permits the applicant to give one yes-or-no
response to these unrelated questions, and it neither invites
nor provides any space for the applicant to explain an
answer. Atunnise had been subjected to expedited re-
moval in 1998 after she attempted to enter the United
States with a fraudulent passport—but she had never
attended a public school in the United States. She checked
the “no” box. The consular officer then overlooked the
1998 removal (we are not told whether the consular
officer took steps to access that information through DHS
records) and, as a result, did not inform Atunnise that
she needed a waiver of inadmissibility to enter the United
States. And so she did not apply for one, even though as
a K-3 applicant she may have been eligible for a waiver
of inadmissibility under § 212(d)(3) of the Immigration
and Nationality Act (“INA”). That provision authorizes
the Attorney General to waive inadmissibility for a
nonimmigrant. 8 U.S.C. § 1182(d)(3)(A); 8 C.F.R.
§ 212.7(a)(1)(i). Had the consular officer noticed the bar to
admissibility, the officer presumably would have alerted
Atunnise that she needed to file, in addition to her visa
application, an application for a waiver under § 212(d)(3).
See 8 C.F.R. § 212.7(a)(1)(i). But because of the oversight,
the consular officer issued visas to Atunnise and her
daughter, and Atunnise left the consulate without ap-
plying for a waiver.
Less than two weeks later, on April 7, 2006, Atunnise and
the child arrived at O’Hare and presented their passports
and visas to an immigration officer. After a fingerprint
check alerted the officer to her 1998 removal, the officer
asked Atunnise whether she had ever been denied ad-
mission to the United States. She truthfully answered that
she had and explained the circumstances. Accordingly,
the officer concluded that Atunnise could not be admitted
Nos. 06-4008 & 07-1287 5
without a waiver of inadmissibility. And since she did
not have one, the officer presumed that her K-3 visa
was invalid. Atunnise was detained and taken to a jail in
McHenry County, Illinois, where she has remained ever
since. The child was released to her father’s care.
DHS issued a notice to appear charging that Atunnise
was subject to removal under § 212(a)(6)(C)(i) of the
INA, which provides that “any alien who, by fraud or
willfully misrepresenting a material fact, seeks to procure
(or has sought to procure or has procured) a visa, other
documentation, or admission into the United States or
other benefit provided under this chapter is inadmissible.”
8 U.S.C. § 1182(a)(6)(C)(i). The supporting allegation
specified that on April 7, 2006, Atunnise had attempted
to enter the United States by fraud or willful misrepresen-
tation because, supposedly, she had failed to disclose her
1998 expedited removal when she applied in Lagos for
her K-3 visa. DHS filed an additional charge pursuant to
§ 212(a)(7)(A)(i) of the INA, which provides that an immi-
grant who does not possess a valid entry document
is inadmissible. See 8 U.S.C. § 1182(a)(7)(A)(i). The sup-
porting allegation specified that on April 7, 2006, Atunnise
presented herself for admission without a valid entry
document; i.e., DHS asserted that the K-3 visa given to
Atunnise in Lagos was invalid. Atunnise denied both
charges.
In July 2006 an immigration judge (“IJ”) conducted a final
removal hearing to consider these charges. Atunnise’s
attorney argued that she is “almost illiterate” and speaks
only limited English, and thus had been especially con-
fused when confronted with the multiple questions with-
in the bulletpoints on her visa application. Counsel pointed
out that when the immigration officer at O’Hare asked
6 Nos. 06-4008 & 07-1287
Atunnise directly whether she had previously been re-
moved, she answered truthfully. The government did not
dispute that its Form DS-156 is ambiguous, but still
tersely declared that Atunnise had lied in answering the
quoted bulletpoint. It was “inconsequential,” the govern-
ment insisted, that the bulletpoint allowed Atunnise only
one “yes” or “no” answer to wholly unrelated questions.
Atunnise argued in the alternative that, if the IJ found
her inadmissible, she was eligible for a waiver. Earlier in
the removal proceedings Atunnise’s counsel had filed
an application for a waiver of inadmissibility using Form
I-601. Aliens use the I-601 to apply for various waivers
of inadmissibility authorized by § 212 of the INA, including
those under sections 212(d)(3) and 212(i). As noted,
§ 212(d)(3) benefits nonimmigrants, whereas § 212(i)
allows the Attorney General to waive inadmissibility for
an immigrant if refusing admission would result in
“extreme hardship” to the immigrant’s citizen-spouse.
8 U.S.C. § 1182(i)(1); 8 C.F.R. § 212.7(a)(1). The I-601 does
not provide a space for the alien to specify what type of
waiver is sought, but previously the IJ had asked Atunnise
to specify “any and all applications for relief” that she
was seeking. The IJ did not advise Atunnise about the
available types of relief for which she might qualify, and
her attorney said only that Atunnise was seeking relief
under § 212(i).
The IJ rendered an oral decision finding Atunnise inad-
missible and also ineligible for any waiver of inadmis-
sibility. The IJ emphasized that it was Atunnise’s burden
to establish admissibility, and reasoned that she had
offered “no evidence” to support her contention that she
truthfully completed her DS-156. And, the IJ continued,
even if Atunnise had made an innocent mistake on her
Nos. 06-4008 & 07-1287 7
application in March 2006, she would still be inadmissible,
because, according to the IJ, “the 1998 fraud alone sub-
jects her to inadmissibility on the 212(a)(6) ground.” As
for the § 212(a)(7) charge, the IJ reasoned that Atunnise
had not “properly procured” her K-3 visa and thus was
inadmissible on that ground as well. Finally, the IJ con-
cluded that Atunnise was ineligible for a waiver of inad-
missibility under § 212(i) because that relief is reserved
for immigrants but she held a nonimmigrant K-3 visa.
The Board of Immigration Appeals (“BIA”) agreed with
the IJ that Atunnise was inadmissible based on her 1998
fraud regardless of whether she committed fraud in
connection with her 2006 visa application. The BIA also
agreed with the IJ that Atunnise was ineligible for a
§ 212(i) waiver, which is reserved for immigrants. Ac-
cordingly, the BIA dismissed Atunnise’s appeal.
Atunnise moved the BIA to reconsider, arguing that a
K-3 visa—though technically a nonimmigrant visa—
functions as a “hybrid visa” because its very purpose is
to expedite the entry and permanent residence of the
holder. Accordingly, she reasoned that the § 212(i) waiver
of inadmissibility should be available to her as a K-3
visa holder. In the alternative, she argued that the IJ
should have evaluated her eligibility for a § 212(d)(3)
waiver, which is available to nonimmigrants and is ob-
tained via the same I-601 that she used during the re-
moval proceedings to apply for a § 212(i) waiver. The
BIA denied the motion, concluding that a K-3 visa is
unambiguously a nonimmigrant visa, and thus there
was no error in its decision that Atunnise is ineligible for
a § 212(i) waiver. The BIA also concluded that Atunnise
had lost her opportunity to apply for a § 212(d)(3) waiver
by not explicitly seeking that relief before the IJ.
8 Nos. 06-4008 & 07-1287
In November 2006 Atunnise filed a timely petition for
review of the BIA’s order dismissing her appeal, and in
February 2007 she filed a petition for review of the BIA’s
denial of her motion to reconsider. We consolidated
the two petitions.
II. Analysis
Atunnise does not challenge the IJ’s finding that she is
inadmissible, and in fact she concedes that based on her
1998 fraud she is inadmissible without a waiver. We
find her concession surprising because Atunnise was
never charged with being inadmissible based on her 1998
fraud; she was charged with fraud in connection with her
2006 visa application. See 8 C.F.R. § 1003.15(b); Brown v.
Ashcroft, 360 F.3d 346, 351 (2d Cir. 2004) (noting that
a notice to appear must include a description of the con-
duct alleged to violate the law). And although the IJ
maintained throughout the removal proceedings that it
was Atunnise’s burden to prove that she is admissible,
it was in fact the government’s burden to prove the
fraud charge with clear and convincing evidence that
Atunnise willfully concealed or misrepresented a material
fact and that her misrepresentation resulted in her obtain-
ing her visa. See Kalejs v. INS, 10 F.3d 441, 446 (7th Cir.
1993); Monter v. Gonzales, 430 F.3d 546, 553-55 (2d Cir.
2005); Mwongera v. INS, 187 F.3d 323, 330 (3d Cir. 1999);
Forbes v. INS, 48 F.3d 439, 441-43 (9th Cir. 1995). The
government submitted no evidence—none at all—that
Atunnise committed fraud in connection with her K-3
visa application.
What the government did, and what it continues to do
here, is declare that Atunnise lied simply because the “no”
Nos. 06-4008 & 07-1287 9
box she checked on her DS-156 is not the right answer to
the question in the bulletpoint that the government conve-
niently supposes she was answering. But “no” is the correct
answer to the other question in the same bulletpoint, and
the government’s unwillingness to confront that untidy
detail is disingenuous. There is a reason why courts
disfavor compound questions posed to witnesses during
trial; they are likely to elicit an ambiguous response. See 81
AM. JUR. 2D WITNESSES § 714 (2008) (“The vice of the
compound question is generally recognized, and a question
which embraces several questions is improper.”). Suppose
a judge on this court is told that she must check either
“yes” or “no” to this bulletpoint: “Is the United States
Court of Appeals for the Seventh Circuit located in Chi-
cago, Illinois? Is Chicago’s N.F.L. team named the Pack-
ers?” Both responses would be correct. And, depending on
who is scoring the answers, both responses also would be
incorrect. That is the position Atunnise finds herself in.
The government insists that it should be allowed to
wait and see what box is checked before deciding
which question the applicant was answering. And be-
cause here the government divined that Atunnise was
responding to the first and not the second question in the
bulletpoint, it charged her under § 212(a)(6)(C)(i) with
fraud. That position, we believe, would be difficult to
sustain.
The same must be said about the charge under
§ 212(a)(7)(A)(i). That provision of the INA specifically
bars admission to immigrants who lack appropriate docu-
mentation. See 8 U.S.C. § 1182(a)(7)(A)(i). Throughout
these proceedings, however, the government has taken
the position that Atunnise’s status as a K-3 visa holder
means that she can be characterized only as a nonimmigrant,
10 Nos. 06-4008 & 07-1287
not as an immigrant. Section 212(a)(7)(B) is the parallel
provision for nonimmigrants, see 8 U.S.C. § 1182(a)(7)(B),
but Atunnise was never charged with violating that
section.
It is arguable, then, that the government never proved
the only charges of inadmissibility it lodged against
Atunnise. But given her concession that her 1998 fraud
renders her inadmissible without a waiver, we turn to
Atunnise’s arguments that the BIA erred as a matter of
law when it concluded that she was ineligible for a
waiver of inadmissibility under § 212(i) and had lost her
chance to seek a waiver under § 212(d)(3). We review
the BIA’s legal conclusions de novo. Balliu v. Gonzales,
467 F.3d 609, 612 (7th Cir. 2006).
Atunnise argues that the BIA erred in concluding that
she is ineligible for a § 212(i) waiver because, according
to her, even though the waiver “technically” is available
only to immigrants, Congress intended for holders of
K-3 nonimmigrant visas to qualify for the waiver. By its
express terms, the § 212(i) waiver is available “in the
case of an immigrant who is the spouse . . . of a United
States citizen . . . if it is established to the satisfaction of
the Attorney General that the refusal of admission to the
United States of such immigrant alien would result in
extreme hardship to the citizen.” 8 U.S.C. § 1182(i)(1)
(emphasis added). The statute specifically excludes
K visa holders from the definition of “immigrant”—“immi-
grant” is defined broadly but does not include aliens
who seek to enter the United States pending the ap-
proval of an immigrant visa. See 8 U.S.C. § 1101(15)(K)(ii)
(emphasis added); see also 8 C.F.R. § 245.1(c)(6)(ii) (stating
that a K-3 visa holder is a nonimmigrant as defined in
8 U.S.C. § 1101(15)(K)). Nonetheless, Atunnise argues
that her status as a nonimmigrant is a technicality, and
Nos. 06-4008 & 07-1287 11
that the K-3 visa functionally confers on her a hybrid
status that “occupies unique space apart from immi-
grant and nonimmigrant status.” This is so, she argues,
because K-3 visa holders have no intent to return perma-
nently to their foreign domicile and instead intend to
reside in the United States with their citizen spouses.
Atunnise argues that the BIA’s finding that she is stat-
utorily ineligible for a § 212(i) waiver based on her techni-
cal nonimmigrant status thwarts Congress’s intent to
facilitate the reunification of K-3 visa holders and their
citizen spouses.
Although there is some logical appeal to Atunnise’s
characterization of the K-3 visa (especially given that
she was charged as an immigrant), to credit her argument
would require us to ignore the canon that plain and
unambiguous statutes must be applied as written. See
Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 450 (2002);
United States v. Farr, 419 F.3d 621, 625 (7th Cir. 2005). Even
if allowing K-3 visa holders to obtain a § 212(i) waiver
might be consistent with Congress’s purpose to reunite
aliens with their citizen spouses while waiting for an I-130
petition to be approved or an immigrant visa to be issued,
we “may not overlook the statute’s plain language to
further what may be a broader statutory purpose.” Farr,
419 F.3d at 625. And here the statute plainly states that
the § 212(i) waiver is available to immigrants, and the
defining provision excludes K-3 visa holders from the
definition of “immigrant.” Accordingly, the BIA did not
err as a matter of law in finding Atunnise statutorily
ineligible for the § 212(i) waiver.
Atunnise also argues that the BIA erred as a matter of
law when it denied her motion to reconsider on the
ground that she could not pursue a waiver of inadmissi-
12 Nos. 06-4008 & 07-1287
bility under § 212(d)(3) because she did not specifically
mention that provision before the IJ. Our view of this
contention is necessarily framed by our previous discus-
sion of the poorly constructed DS-156 that the government
gave to Atunnise at the consulate in Lagos. Aliens who
need a waiver of inadmissibility to obtain a K-3 visa
typically apply for that waiver at the consulate when they
apply for their visa. See 8 C.F.R. §§ 212.4(a)(1), 212.7(a)(1)(i).
The consular officer assesses whether the alien needs a
waiver; an alien “who is applying for a nonimmigrant
visa and is known or believed by the consular officer to
be ineligible for such a visa” may receive a waiver of
inadmissibility. 8 U.S.C. § 1182(d)(3)(A). From the gov-
ernment’s vantage, this is an instance where an alien
falsified an answer on a DS-156 and thus obtained a
visa through fraud. We have already rejected that view
of the evidence, and what we are left with instead
is a situation where a consular officer did not realize
that a K-3 applicant should apply for a waiver of inad-
missibility because the form created to signal the need
for that benefit is fatally flawed. The government does
not contend that the Attorney General would have denied
a waiver under § 212(d)(3) had she applied for one in
Lagos, and so it seems that Atunnise’s “no” answer to
one confusing bulletpoint is the reason she has been
detained in a cell for two years. Consular officers appar-
ently have “access to the State Department’s primary
visa look-out system (CLASS), which contains the names
of persons . . . who might be ineligible for a visa should
they apply for one.” AUSTIN T. GRAGOMEN, JR. ET AL.,
IMMIGRATION PROCEDURES HANDBOOK § 10.19 (Thomson
West 2007-2008 ed.). We cannot say whether running that
computer check would have averted this regrettable
situation, but plainly the government has invited contro-
Nos. 06-4008 & 07-1287 13
versy by economizing on bulletpoints in its DS-156. Had
the government drafted a straightforward question
asking whether Atunnise had ever been refused entry or
removed from the United States, she either would have
checked “yes”—in which case the consular officer
would have alerted her to apply for the § 212(d)(3)
waiver—or she would have checked “no”—in which case
the government would have had a plausible fraud case.
Bearing this context in mind, we agree with Atunnise
that the BIA erred as a matter of law when it held that
she lost her opportunity to seek a § 212(d)(3) waiver by
not specifically asking for that relief until her motion to
reconsider. According to the BIA, a § 212(i) waiver was
the only specific relief Atunnise sought within the dead-
line framed by the IJ. But as soon as it became apparent
to Atunnise that she needed a waiver of inadmissibility
to enter the United States, she filed her I-601 application
with the IJ. Form I-601 is the form used to apply for a
waiver under both § 212(i) and § 212(d)(3). See 8 C.F.R. §
212.7(a)(1)(i). Nowhere does that form provide room for the
alien to specify under which statutory provision she is
seeking a waiver. In fact, the form pointedly instructs the
alien not to write in the only space that provides room to
designate the relief sought.
Moreover, as Atunnise points out, it was the IJ’s duty
during the removal proceedings to alert her about all the
avenues of relief available and afford her an opportunity
to apply. See 8 C.F.R. § 1240.11(a)(2); Asani v. INS, 154
F.3d 719, 727 (7th Cir. 1998) (holding that an IJ must
inform aliens of rights even where alien is represented by
counsel). The relevant regulation states that in “conjunction
with any application for creation of status of an alien
lawfully admitted for permanent residence,” where the
14 Nos. 06-4008 & 07-1287
alien applies to the IJ for a waiver of inadmissibility, the
IJ “shall inform the alien of his or her apparent eligibility
to apply for any of the benefits enumerated in this
chapter and shall afford the alien an opportunity to make
application during the hearing.” 8 C.F.R. § 1240.11(a)(2).
The government argues that the regulation does not
apply here because Atunnise was neither lawfully ad-
mitted nor eligible for permanent residency, but that is
incorrect; K-3 visa holders are eligible to apply for perma-
nent residency. See 8 C.F.R. § 245.1(c)(6)(ii). By obtaining
a K-3 visa, Atunnise completed the first step toward
the creation of status as an alien lawfully admitted for
permanent residence, yet when she applied for a waiver
of inadmissibility using form I-601 the IJ did not inform
Atunnise that she might be eligible for a § 212(d)(3) waiver,
let alone consider whether she was eligible. Cf. Pede v.
Gonzales, 442 F.3d 570, 571 (7th Cir. 2006) (holding that
IJ has no duty to alert alien about availability of poten-
tial relief that IJ already has evaluated and determined
to be unavailable). Because the IJ did not discharge this
duty, Atunnise did not waive her opportunity to seek
§ 212(d)(3) relief when she did not specifically identify
that form of relief during the removal proceedings. See
Asani, 154 F.3d at 727.
The government now defends the BIA’s ruling by
arguing that Atunnise is not eligible for § 212(d)(3) relief
because she did not apply for a waiver when she filled out
her visa application at the consulate in Nigeria. The
government relies on 8 C.F.R. § 212.7, which states that an
applicant for a K visa seeking a waiver of inadmissibility
“shall file an application on Form I-160 at the consular
office considering the visa application.” But neither the
IJ nor the BIA decided whether it was too late after
Nos. 06-4008 & 07-1287 15
she entered removal proceedings for Atunnise to seek a
§ 212(d)(3) waiver, and under SEC v. Chenery Corp., 332 U.S.
194 (1947), the government may not defend the agency’s
ruling on a ground that is not articulated—or at least
discernable—in the decision itself. See Moab v. Gonzales, 500
F.3d 656, 659 (7th Cir. 2007); Gebreeyesus v. Gonzales, 482
F.3d 952, 956 (7th Cir. 2007); Mengistu v. Ashcroft, 355 F.3d
1044, 1046-47 (7th Cir. 2004).
In any event, the government cites no persuasive author-
ity demonstrating that it became too late for Atunnise to
seek the § 212(d)(3) waiver when she arrived at the border.
The regulation directing that an application for a
§ 212(d)(3) waiver be filed at the consular office must
be read in connection with the statute itself, which
specifies that the consular officer can recommend that
the alien receive a waiver where the officer knows
or believes the waiver is necessary. See 8 U.S.C.
§ 1182(d)(3)(A); 8 C.F.R. § 212.7(a)(1)(i). But here the
government prevented the consular officer in Lagos
from discovering that Atunnise needed a waiver because
it used an incoherent form to determine her admissi-
bility and then apparently took no steps to cross-check
her information through any database. And now that
Atunnise has used her government-issued visa to come
to the United States the government has taken the posi-
tion that it is too late for her to apply for the waiver. It takes
this position without even acknowledging—let alone
defending—the role its ineffective screening methods
played in Atunnise’s failure to apply for the waiver in
Lagos.
At oral argument the government relied heavily on the
BIA’s decision in Matter of Fueyo, 20 I. & N. Dec. 84(BIA 1989), to support its argument that it is too late
16 Nos. 06-4008 & 07-1287
now that removal proceedings are underway for Atunnise
to apply for a § 212(d)(3) waiver. In Fueyo, the BIA held
that an alien who entered the United States illegally and
was in deportation proceedings could not apply for a
waiver under § 212(d)(3)(B) because, “[b]y its very nature,
the relief sought can only confer advance permission for
a future entry, and the statute and regulations make no
provision for this waiver to be granted retroactively.” Id. at
87. But Atunnise is not proposing a retroactive grant
because by virtue of her detention she has not yet
entered the United States. She has been held in limbo at
the border for almost two years and is still seeking entry.
See Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (noting
that the “distinction between an alien who has effected
an entry into the United States and one who has never
entered runs throughout immigration law”); Leng May
Ma v. Barber, 357 U.S. 185, 188 (1958) (noting that “the
detention of an alien in custody pending determination
of his admissibility does not legally constitute an entry
though the alien is physically within the United States”);
Ibragimov v. Gonzales, 476 F.3d 125, 134 (2d Cir. 2007)
(noting that even though paroled aliens are physically
present in the United States “they nevertheless remain
constructively detained at the border”); Sidhu v. Ashcroft,
368 F.3d 1165 (9th Cir. 2004) (holding that alien taken
into custody following detention at airport did not enter
the United States). Atunnise arrived with a visa that she
believed was valid, and as soon as it was discovered that
she needed a waiver—a waiver she could have received
in Nigeria had it not been for the inept bureaucratic
form—she filed the necessary form.
As a practical matter, we see no reason why Atunnise
would not still be eligible for a § 212(d)(3) waiver. Even if
Nos. 06-4008 & 07-1287 17
she is required to file her I-601 with the consular office,
nothing in the regulation states that she has to be physi-
cally present in Lagos to do so. The regulations require
a visa applicant to “personally appear before and be
interviewed by a consular officer,” 22 C.F.R. § 41.102(a), but
Atunnise has already met that requirement, and even if she
had not, the consular officer could waive personal appear-
ance in this “unusual circumstance,” see id. § 41.102(b)(6).
And in any event, the consular officer does not have the
authority to grant a § 212(d)(3) waiver—whether an alien
qualifies is a decision that is always left to “the discretion
of the Attorney General.” 8 U.S.C. § 1182(d)(3)(A). And as
Atunnise notes, the IJ has the catchall authority during
removal proceedings “to take any action consistent with
applicable law and regulations as may be appropriate.” 8
C.F.R. § 1240.1(a). Indeed, in other cases the BIA has
approved of an alien applying for a similar waiver before
an IJ when the alien has not yet been admitted to the
United States. See Matter of Kazemi, 19 I. & N. Dec. 49, 52
(BIA 1984) (holding that the BIA has jurisdiction during
exclusion proceedings to consider an application for waiver
of inadmissibility under § 212(d)(4)); Matter of LeFloch, 13 I.
& N. Dec. 251, 255 (BIA 1969) (noting that alien may apply
for § 212(d)(4) waiver of inadmissibility during exclusion
proceedings). At best, the government has shown that
applying for a § 212(d)(3) waiver at the consulate at the
time an alien applies for her visa is the typical procedure,
but it points to no authority that would preclude Atunnise
from seeking that waiver after she left Nigeria but before
she enters the United States.
Because the BIA erred as a matter of law in applying
the principles of waiver in Atunnise’s case, we grant the
petition to review the BIA’s decision dismissing her
18 Nos. 06-4008 & 07-1287
initial appeal and vacate the IJ’s order of removal. We also
grant the petition to review the BIA’s denial of Atunnise’s
motion to reconsider and remand so that the BIA may
consider whether she is eligible for a § 212(d)(3) waiver.
And in considering her eligibility for that relief, we are
confident that the BIA will take into account the unique
facts of this case and the exceptional hardship that
Atunnise and her family have endured.
USCA-02-C-0072—4-30-08