Mykola Shchupak v. U.S. Attorney General

Case: 15-14363 Date Filed: 04/14/2016 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14363
Non-Argument Calendar
________________________
Agency No. A076-577-376
MYKOLA SHCHUPAK,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(April 14, 2016)
Before MARCUS, WILLIAM PRYOR and JULIE CARNES, Circuit Judges.
PER CURIAM:
Mykola Shchupak petitions for review of the Immigration Judge’s (“IJ”)
order, which the Board of Immigration Appeals (“BIA”) affirmed without opinion,
denying his claim for a hardship waiver of inadmissibility under Immigration and
Case: 15-14363 Date Filed: 04/14/2016 Page: 2 of 5
Nationality Act (“INA”) § 212(h), 8 U.S.C. § 1182(h). On appeal, Shchupak, who
was found to be deportable and who is not concurrently applying for adjustment of
status, argues that the immigration judge (“IJ”) violated his equal protection rights
by determining that he is ineligible for waiver under INA § 212(h). After thorough
review, we deny Shchupak’s petition.
When the BIA affirms the IJ’s decision without opinion, we review the IJ’s
order as the final agency decision. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226,
1230 (11th Cir. 2005). Although we lack jurisdiction to review a decision of the
Attorney General to grant or deny a waiver under INA § 212(h), we have
jurisdiction to review the legal question of whether the petitioner is statutorily
eligible to apply for a § 212(h) waiver. Lanier v. U.S. Att’y. Gen., 631 F.3d 1363,
1365 n.2 (11th Cir. 2011). We review the BIA’s statutory interpretation de novo,
“but will defer to the BIA’s interpretation of a statute if it is reasonable and does
not contradict the clear intent of Congress.” Jaggernauth v. U.S. Att’y Gen., 432
F.3d 1346, 1350 (11th Cir. 2005). Constitutional challenges are reviewed de novo.
Lapaix v. U.S. Att’y Gen., 605 F.3d 1138, 1143 (11th Cir. 2010).
Section 212(h) provides that the Attorney General, in her discretion, may
waive an alien’s inadmissibility from having certain criminal convictions if the
petitioner demonstrates that his “denial of admission would result in extreme
hardship” to a United States citizen family member, and the Attorney General has
2
Case: 15-14363 Date Filed: 04/14/2016 Page: 3 of 5
“consented to the alien’s applying or reapplying for a visa, for admission to the
United States, or adjustment of status.” 8 U.S.C. § 1182(h). “[F]ederal
classifications such as those at issue in § 212 of the [INA] are subject to minimal
scrutiny under the rational basis standard of review, and are valid if not arbitrary or
unreasonable.” Poveda v. U.S. Att’y Gen., 692 F.3d 1168, 1172 (11th Cir. 2012)
(quotation omitted). 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. Id.
Previously, we held that the BIA’s prior interpretation of § 212(h), which
permitted the waiver for deportable (as opposed to inadmissible) aliens only if the
deportable alien could apply for adjustment of status or had departed and returned
to the United States after their criminal conviction, was unconstitutional as a
violation of equal protection. Yeung v. INS, 76 F.3d 337, 338-41 (11th Cir. 1995).
However, “[i]n the wake of Yeung, the Board has ‘abandoned’ its previous
position.” Poveda, 692 F.3d at 1173. Currently, the BIA:
interprets section 212(h) to provide that the Attorney General may grant a
waiver in two situations: first, the Attorney General may provide a waiver to
an alien at the border who seeks admission, including an alien who has
departed the United States after committing a deportable offense, so long as
the alien remains outside our borders while applying for relief; and second,
the Attorney General may provide a waiver to an alien within our borders
after his conviction for a deportable offense so long as he applies for an
adjustment of status.
3
Case: 15-14363 Date Filed: 04/14/2016 Page: 4 of 5
Id. Thus, “an alien who remains within the United States must apply for
adjustment of status to obtain a waiver under section 212(h).” Id. at 1173-74.
In Poveda, we held that the BIA’s current interpretation of INA § 212(h) is
reasonable and thus entitled to Chevron deference. Id. at 1176; see Chevron
U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 865 (1984) (holding
that where Congress has not unambiguously spoken in a statute on an issue, the
statutory interpretation by the agency entitled to administer it is entitled deference
so long as the interpretation is reasonable). We noted that the true distinction
between those eligible and ineligible for the § 212(h) waiver “is not ‘lack of
international travel,’” but rather between “those criminal aliens who seek to be
admitted to the United States, and those criminal aliens who are being deported
from the United States.” Poveda, 692 F.3d at 1177 (quotations and emphasis
omitted). We further held that there are multiple rational bases for distinguishing
between aliens who are inadmissible and aliens who are deportable. Id. at 1176-
78; see also Rivas v. U.S. Att’y Gen., 765 F.3d 1324, 1329-30 (11th Cir. 2014)
(dealing with the availability of nunc pro tunc waivers to deportable aliens who left
and reentered the United States).
Here, the IJ did not err in denying Shchupak’s application for a § 212(h)
waiver. Shchupak is not eligible for relief because he is a deportable alien in the
United States and did not concurrently file an application for adjustment of status.
4
Case: 15-14363 Date Filed: 04/14/2016 Page: 5 of 5
See Poveda, 692 F.3d at 1173-74. Further, Shchupak’s reliance on Yeung is
unavailing, because this Court has since held that the BIA’s current interpretation
of § 212(h) is reasonable. See Poveda, 692 F.3d at 1173, 1176-78. Moreover,
Poveda held that the distinction between deportable and inadmissible aliens has a
rational basis, and that holding has not been overruled or undermined to the point
of abrogation. See United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008)
(Under the prior panel precedent rule, subsequent panels are bound by the holding
of a prior panel “unless and until it is overruled or undermined to the point of
abrogation by the Supreme Court or by this court sitting en banc.”). Thus,
Shchupak’s argument is foreclosed by our prior precedent.
AFFIRMED.
5