Hanif v. Attorney General of United States

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 11-2643
_____________
ZAMAN SATTAUR HANIF,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
______________
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
(Agency No. A093- 306- 556)
Immigration Judge: Honorable Andrew Arthur
______________
Argued April 11, 2012
______________
Before: HARDIMAN, GREENAWAY, JR. and
GREENBERG, Circuit Judges.
(Opinion Filed: September 14, 2012)
1
______________
OPINION
______________
Ryan A. Muennich, Esquire (argued)
Muennich & Bussard
30 Vesey Street
16th Floor
New York, NY 10007
Counsel for Petitioner
Mary A. Kenney, Esquire
Benjamin R. Winograd, Esquire (argued)
American Immigration Council
1331 G Street, N.W.
Suite 200
Washington, DC 20005
Counsel for Amicus
Eric H. Holder, Jr., Esquire (Did not enter an appearance)
Rachel L. Browning, Esquire (argued)
Joseph D. Hardy, Jr., Esquire
Thomas W. Hussey, Esquire
Justin R. Markel, Esquire
Blair O’Connor, Esquire
United States Department of Justice
Office of Immigration Litigation
Civil Division
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
2
GREENAWAY, JR., Circuit Judge.
Petitioner Zaman Sattaur Hanif (“Hanif” or
“Petitioner”) seeks review of the decision of the Board of
Immigration Appeals (“BIA”) 1 finding him statutorily
ineligible for relief from removal under 8 U.S.C. § 1182(h). 2
Applying the precedent of Matter of Koljenovic, 25 I. & N.
Dec. 219 (BIA 2010), the BIA found that Hanif was a lawful
permanent resident (“LPR”), and that his date of admission
was May 17, 2006, the date he was granted LPR status. Thus,
he had not satisfied the seven years of continuous residence
required by the statute. Hanif argues that the language of the
statute is clear, and that he has never been “admitted” 3 to the
1
In lieu of issuing its own opinion, the BIA adopted
and affirmed the decision of the Immigration Judge (“IJ”).
2
The BIA based its decision on the following sentence
in subsection (h): “No waiver shall be granted under this
subsection in the case of an alien who has previously been
admitted to the United States as an alien lawfully admitted for
permanent residence if either since the date of such admission
the alien has been convicted of an aggravated felony or 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.”
3
“The terms ‘admission’ and ‘admitted’ mean, with
respect to an alien, the lawful entry of the alien into the
3
United States “as an alien lawfully admitted for permanent
residence.” 4 Rather, he acquired his LPR status while in the
United States, never having been admitted for that purpose.
For the reasons set forth below, we find that the
language of the statute is clear and unambiguous on its face.
Therefore, we will accord no deference to the BIA’s
interpretation, which we find to be at odds with the wording
and clear meaning of the statute. We will grant the petition,
vacate the BIA’s decision, and remand for further
proceedings consistent with this opinion.
I. Facts/background
Hanif is a citizen of Guyana currently detained by
immigration authorities pending the outcome of his removal
proceedings. Although the exact details are not clear, Hanif
entered the United States on a fraudulent visa at some point
during the 1980s. 5 After his marriage to Shakirah Hattim, a
United States after inspection and authorization by an
immigration officer.” 8 U.S.C. § 1101(a)(13)(A).
4
“The term ‘lawfully admitted for permanent
residence’ means 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).
5
An August 11, 2009 Presentence Investigation
Report (“PSI”) prepared for the United States District Court
for the Eastern District of New York states that Hanif
4
naturalized citizen, Hanif applied for a waiver of his ground
of inadmissibility. On May 17, 2006, a New York
Immigration Judge (“IJ”) granted Hanif’s application and
adjusted Hanif to LPR status. Prior to his detention, Hanif
resided in the Bronx, New York with his wife and two
children. Also living in the Bronx area are Hanif’s parents
and five siblings, all either naturalized citizens or lawful
permanent residents.
According to the PSI, in June of 2008, Minoutie
Khadoo, a girlfriend of Hanif’s nephew, was arrested for
possession of a forged instrument. In exchange for reduced
charges against Khadoo, Hanif turned over $5,100 in
counterfeit bills to the New York State Office of Tax
Enforcement (“OTE”) and offered to cooperate and work
with the OTE and the United States Secret Service in their
ongoing counterfeiting investigation. However, after a
request by the Secret Service to take a polygraph
examination, Hanif fled the country. On August 22, 2008, a
warrant for Hanif’s arrest was issued by the United States
District Court for the Eastern District of New York.
In early December 2008, the Secret Service was
notified that Hanif would fly to the United States from
admitted to entering the United States illegally as an adult in
the 1980s. The PSI noted that Hanif “stated that he entered
the United States illegally,” approximately two years after his
parents immigrated in 1986. The PSI also stated that
“according to the Pretrial Services Report, the defendant
advised that he illegally immigrated to the United States in
1984.” (Admin. R. 156.)
5
Guyana to surrender. Hanif arrived at John F. Kennedy
International Airport on December 16, 2008. He was arrested
and paroled into the United States for purposes of prosecution
for counterfeiting. On May 12, 2009, Hanif pled guilty to
dealing in counterfeit United States currency, 18 USC § 473,
and, on September 8, 2009, was sentenced to four months in
prison.
On December 8, 2009, the Department of Homeland
Security served Hanif with a “Notice to Appear,” charging
him with inadmissibility by virtue of his federal conviction
under the Immigration and Nationality Act 8 U.S.C., §
1182(a)(2)(A)(i)(I). 6 On January 21, 2010, Hanif conceded
his inadmissibility as charged. Hanif then sought a waiver of
inadmissibility under 8 U.S.C. 1182(h) 7 and submitted the
6
Section 1182(a)(2)(A)(i)(I) provides that “any alien
convicted of, or who admits having committed, or who admits
committing acts which constitute the essential elements of . . .
a crime involving moral turpitude (other than a purely
political offense) or an attempt or conspiracy to commit such
a crime” is ineligible to receive visas and ineligible to be
admitted to the United States. 8 U.S.C. § 1182(a)(2)(A)(i)(I).
7
The pertinent clause in section 1182(h) reads “[n]o
waiver shall be granted under this subsection in the case of an
alien who has previously been admitted to the United States
as an alien lawfully admitted for permanent residence if either
since the date of such admission the alien has been convicted
of an aggravated felony or 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
6
corresponding I-601 Application for Waiver on Ground of
Excludability on February 17, 2010, claiming that removal
would cause extreme hardship to his wife and children.
On January 11, 2011, an IJ denied Hanif’s application,
finding him ineligible for a waiver under 8 U.S.C. 1182(h),
pursuant to the BIA’s decision in Matter of Koljenovic.
Specifically, the IJ noted that “the Board of Immigration
Appeals held [in Matter of Koljenovic] that an alien who
entered the United States without inspection and later
obtained lawful permanent residence [sic] status through
adjustment [of] status has previously been ‘admitted as a
lawful permanent resident, and therefore, must satisfy the
seven year continuous residence requirement at Section
212(h).’” (Admin. R. 53-54.) On May 27, 2011, the BIA
adopted and affirmed the IJ’s order. On June 17, 2011, Hanif
petitioned this Court for review of the BIA’s decision.
II. Jurisdiction
The BIA has jurisdiction to review the IJ’s decision
under 8 C.F.R. § 1003.1(b)(3). In general, “courts of appeals
. . . have no jurisdiction to review [the BIA’s] discretionary
and factual determinations presented in petitions for review.”
Jarbough v. Att’y Gen., 483 F.3d 184, 188 (3d Cir. 2007).
However, this Court has jurisdiction, pursuant to 8 U.S.C. §
1252(a)(2)(D), to review the BIA’s final order for
constitutional claims and questions of law. See Sukwanputra
v. Gonzales, 434 F.3d 627, 634 (3d Cir. 2006) (“By virtue of
proceedings to remove the alien from the United States.” 8
U.S.C. § 1182(h).
7
§ 1252(a)(2)(D), constitutional claims or questions of law
raised in a petition for review elude the jurisdiction-stripping
provisions of the INA.”). Petitioner challenges the BIA’s
statutory interpretation of 8 U.S.C. § 1182(h), thus raising a
question of law within the meaning of § 1252(a)(2)(D).
Accordingly, we can exercise jurisdiction over this petition
for review.
III. Standard of Review
When the BIA issues its own decision on the merits,
rather than a summary affirmance, we review its decision, not
that of the IJ. Sheriff v. Att’y Gen., 587 F.3d 584, 588 (3d
Cir. 2009). When, however, the Board adopts and affirms the
IJ’s decision, as it did here, we have authority to review both
decisions. See Sandie v. Att’y Gen., 562 F.3d 246, 250 (3d
Cir. 2009) (“Inasmuch as the BIA deferred to the IJ’s
credibility determinations and adopted the reasons the IJ set
forth, we have authority to review both determinations.”
(quoting Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004)).
“The BIA’s factual findings are reviewed for
substantial evidence.” Briseno-Flores v. Att’y Gen., 492 F.3d
226, 228 (3d Cir. 2007) (citing 8 U.S.C. § 1252(b)(4)(B)).
We review legal determinations de novo, subject to the
principles of deference articulated in Chevron v. Natural
Resources Defense Council, 467 U.S. 837, 844 (1984). Id. at
228.
IV. Analysis
When considering the propriety of an agency’s
interpretation of a statute, we must turn to the analytical
structure set forth by the Supreme Court in Chevron. 467
8
U.S. at 842-43. “Under the familiar two-step Chevron
inquiry, first, if the statute is clear we must give effect to
Congress’[s] unambiguous intent, and, second, if the statute is
silent or ambiguous with respect to a specific issue, we defer
to an implementing agency’s reasonable interpretation of that
statute.” De Leon-Ochoa v. Att’y Gen., 622 F.3d 341, 348
(3d Cir. 2010).
Regarding the first step, the Supreme Court noted that
“[t]he judiciary is the final authority on issues of statutory
construction and must reject administrative constructions
which are contrary to clear congressional intent. If a court,
employing traditional tools of statutory construction,
ascertains that Congress had an intention on the precise
question at issue, that intention is the law and must be given
effect.” Chevron, 467 U.S. at 843 n.9 (citations omitted).
We have adopted limitations on the first step of the
Chevron test.
As this Court has observed, “a blind adherence
to the literal meaning of a statute [could] lead to
a patently absurd result that no rational
legislature could have intended. Following the
letter, rather than the spirit, of the law in such
cases would go against the court’s role of
construing statutes to effectuate the legislature’s
intent.”
Barrios v. Att’y Gen., 399 F.3d 272, 277 n.11 (3d Cir. 2005)
(quoting Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 569
(3d Cir. 2002) (in turn citing United States v. Schneider, 14
F.3d 876, 880 (3d Cir. 1994) (“It is the obligation of the court
9
to construe a statute to avoid absurd results, if alternative
interpretations are available and consistent with the legislative
purpose.”)).
As to the second step, the Supreme Court stated that a
“court 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.” Chevron, 467 U.S. at 843 n.11.
Petitioner and amicus argue that the language of the
statute is clear, and this Court therefore need only read the
statute in order to conclude that it does not apply to him.
That is, according to Petitioner, he was never “admitted” to
this country “as an alien lawfully admitted for permanent
residence.” Although his status is that of “an alien lawfully
admitted for permanent residence,” as defined by 8 U.S.C. §
1101(a)(20), he has never been admitted to the United States,
since he originally entered the country illegally.
Although asserting that we need not go beyond the
plain meaning of the statute, Petitioner also argues that the
statute’s legislative history supports his position. Noting that
Congress amended § 1182(h), § 1229b(a) and the definition
of “admission” in § 1101(a)(13)(A) at the same time,
Petitioner concludes that the differences among these sections
indicate Congress’s clear intent to differentiate among them.
Specifically, Petitioner notes that Congress used “lawfully
admitted for permanent residence” in § 1229b(a) without
using “admitted” as an additional modifier, while it used both
terms in § 1182(h).
10
We agree with Petitioner that the statute is clear and
unambiguous. In § 1182(h), Congress used specific terms
defined in the statute. Absent any indication to the contrary,
we must presume that Congress intended to give those terms
the meaning ascribed to them elsewhere in the statute. See,
e.g., Envtl. Def. v. Duke Energy Corp., 549 U.S. 561, 574
(2006) (“[W]e presume that the same term has the same
meaning when it occurs here and there in a single statute.”).
Cf. FCC v. AT&T, Inc., 131 S.Ct. 1177, 1182 (2011) (“When
a statute does not define a term, we typically ‘give the phrase
its ordinary meaning.’” (quoting Johnson v. United States,
130 S.Ct. 1265, 1270 (2010))). Further, as the Supreme Court
has often stated, “courts must presume that a legislature says
in a statute what it means and means in a statute what it says
there.” Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54
(1992).
Congress clearly only placed limitations on waivers
available to aliens who were previously admitted as an alien
lawfully admitted for permanent residence. This phrase
requires not only a prior admission to the United States, but
also that the prior admission has been made while the alien
was in the status of a lawful permanent resident. We perceive
no other meaning from the language of the statute.
The government holds a different view, arguing that §
1182(h) is ambiguous and therefore cannot be read in
isolation, but must be read in the context of the entire statute.
Examining the full statute, the government, like the BIA,
concludes that the date of Hanif’s adjustment of status should
be considered to be his date of admission. Therefore,
according to the government, the BIA correctly concluded
that Hanif did not have more than seven years of residency,
thus rendering him ineligible for the waiver.
11
At first blush, the government’s argument has some
appeal. Pointing to the language of 8 U.S.C. § 1255(b),
which provides that “the Attorney General shall record the
alien’s lawful admission for permanent residence as of the
date the order of the Attorney General approving the
application for the adjustment of status is made,” the
government contends that Congress clearly stated that the
date of the adjustment of status is the date of admission.
When the Attorney General enters the order adjusting the
status of the alien, “the Secretary of State shall reduce by one
the number of the preference visas authorized to be issued
under sections 1152 and 1153 of this title within the class to
which the alien is chargeable for the fiscal year then current.”
Id. However, upon closer inspection, this argument fails
because Congress adopted specific definitions of “admission”
and “lawfully admitted for permanent residence,” which
distinguish between the two terms. Notably, in 8 U.S.C.
§ 1101(a)(13)(A), Congress treated “admission” as an event
or action, while in 8 U.S.C. § 1101(a)(20) Congress regarded
“lawfully admitted for permanent residence” as an
immigration status. The date of gaining a new status is not
the same as the date of the physical event of entering the
country. We perceive the recording requirement of § 1255(b)
to be a ministerial provision relating to the monitoring and
control of the number of visas available in any given year,
rather than an effort by Congress to amend the definitions of
“admitted” and “lawfully admitted for permanent residence”
set forth in § 1101(a).
The government also points to the legislative history of
IIRIRA in support of its assertion that the date of the
adjustment of status should be considered the date of
admission. The government focuses on two points: (1)
12
statements expressing Congress’s intent to streamline
deportation through the amendments and (2) the fact that the
House Conference Report accompanying IIRIRA indicated
that the continuous residency requirements established in §
1229b(a) should also be applied to § 1182(h).
While considering Congress’s intent with regard to
maintaining some parallelism between § 1182(h) and §
1229b(a) could potentially be appropriate, the language
adopted in the two sections does not support the
government’s position since the two sections differ in a
significant way. Section 1229b(a) provides that
[t]he Attorney General may cancel removal in
the case of an alien who is inadmissible or
deportable from the United States if the alien--
(1) has been an alien lawfully admitted for
permanent residence for not less than 5 years,
(2) has resided in the United States
continuously for 7 years after having been
admitted in any status, and
(3) has not been convicted of any aggravated
felony.
8 U.S.C. § 1229b(a).
As we recently observed in Nelson v. Att’y Gen., 685
F.3d 318 (3d Cir. 2012), the clear language of this section
distinguishes between “an alien lawfully admitted for
permanent residence” and an alien “admitted in any status.”
In Nelson, we noted that, contrary to Nelson’s argument,
13
the “after having been admitted in any status”
language simply means that the seven-year
period need not accrue entirely after admission
as a lawful permanent resident. The “in any
status” phrase could show congressional
recognition that an alien may initially be
admitted to the United States in some other
status (e.g., on a student visa, as a refugee, or
some other nonimmigrant status) and receive an
adjustment of status to a permanent resident
sometime later. Under this interpretation, the
statutory language merely clarifies that such an
alien does not begin accruing time towards the
seven-year period only after his adjustment to
permanent resident status. Rather, the alien
immediately begins accumulating time
following his initial admission, regardless of the
status.
Id. at 323 (emphasis omitted).
Additionally, as Petitioner notes, Congress chose to
not use “admitted” in conjunction with “lawfully admitted for
permanent residence” in § 1229b(a), as it did in § 1182(h).
The omission of this additional modifier creates a significant
distinction between the two sections.
“[W]here Congress includes particular language
in one section of a statute but omits it in another
section of the same Act, it is generally
presumed that Congress acts intentionally and
purposely in the disparate inclusion or
exclusion.” . . . We refrain from concluding
here that the differing language in the two
14
subsections has the same meaning in each. We
would not presume to ascribe this difference to
a simple mistake in draftsmanship.
Russello v. United States, 464 U.S. 16, 23 (1983) (quoting
United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir.
1972)). Here, we cannot omit the additional modifier
“admitted” from § 1182(h), nor can we insert it into §
1229b(a) in order to conform the statute to the government’s
interpretation. Rather, we must read the statute as written,
noting the differences between these two sections.
The government further argues that a literal reading of
the statute produces the absurd result of Hanif being an LPR
who was never admitted to the country. 8 In a slightly
different context, we have considered whether a rational basis
supports Congress’s enactment of § 1182(h). DeLeon-
Reynoso v. Ashcroft, 293 F.3d 633 (3d Cir. 2002). In De
Leon-Reynoso, the petitioner argued that § 1182(h) violated
the Equal Protection Clause since that section treated
different LPRs differently. Specifically,
8
Similarly, the government suggests an absurd result
would occur by applying Hanif’s interpretation since an alien
entering the country without inspection would not be eligible
for relief under § 1229b(a). Given the fact that § 1229b(a)
does not use “admitted” as a modifier for “lawfully admitted
for permanent residence,” we find the government’s
reasoning on this point to be unpersuasive.
15
De Leon argues that § 1182(h) violates the
equal protection component of the Fifth
Amendment’s Due Process clause by making an
impermissible distinction between two
categories of aliens who are not permitted to
reside in the United States: those who have not
previously been lawfully admitted to the United
States (i.e., non-LPRs) and those who have
been previously admitted to the United States
but have not resided in the United States for
seven consecutive years before removal
proceedings are initiated (LPRs).
Id. at 638. We found § 1182(h) to be constitutional,
observing that since “Congress conceivably had good reasons
to create the § 1182(h) distinction, we hold that the distinction
survives rational basis scrutiny.” Id. at 640. We did note that
“[o]ur holding that the § 1182(h) distinction survives rational
basis scrutiny should not be mistaken for an endorsement of
the policy.” Id.
The conclusion in De Leon-Reynoso limits our ability
in the present case to consider whether the plain meaning of
the statute produces an absurd result. While concluding that a
rational basis exists for treating different types of LPRs
differently is not the same as deciding that a literal
interpretation of the statute would produce an absurd result,
our earlier decision is instructive. Conceivably, Congress
could have had reasons to treat LPRs differently based on
whether or not they were admitted to the United States in that
status.
Even absent the holding in De Leon-Reynoso, we
would not conclude that giving the statute its literal meaning
16
produces an absurd result. We acknowledge that giving the
statute its literal meaning results in situations such as here,
where Hanif, having entered the United States illegally,
technically was never “admitted” to the country as defined in
§ 1101(a)(13)(A). However, Congress has long been aware
of the fact that aliens may enter the country without
inspection and later adjust to LPR status. 9 The statute, in fact,
allows for just this situation. See 8 U.S.C. § 1255(i). While
we find this situation awkward, we cannot substitute our
judgment for that of Congress. We can, and in fact, must, give
the statute the meaning Congress intended. Further, “‘[t]he
fact that Congress may not have foreseen all of the
consequences of a statutory enactment is not a sufficient
reason for refusing to give effect to its plain meaning.’”
Lockhart v. United States, 546 U.S. 142, 146 (2005) (quoting
Union Bank v. Wolas, 502 U.S. 151, 158 (1991)). “In light of
these plausible explanations . . . , we cannot say that
adherence to the statute’s plain text would be absurd.”
Fogelman, 283 F.3d at 570.
Similarly, after finding the statute’s meaning to be
clear, the Fifth Circuit considered whether this interpretation
9
Congress acknowledged that aliens may attempt to
enter the country without inspection in the definition section
of the statute. Section 1101(a)(13)(C)(vi) provides that “[a]n
alien lawfully admitted for permanent residence in the United
States shall not be regarded as seeking an admission into the
United States for purposes of the immigration laws unless the
alien-- . . . has not been admitted to the United States after
inspection and authorization by an immigration officer.”
17
would produce an absurd result, and found that it would not.
Rather, the Fifth Circuit surmised that the distinction between
aliens admitted to the United States as LPRs and aliens who
convert to LPR status while in the country may have been
Congress’s first step in reaching its goal of expediting the
removal of criminal aliens. Martinez, 519 F.3d at 545. 10
All other circuits that have considered the language of
subsection (h) have reached the same conclusion as we do
here; namely, that the statute clearly requires both an
“admission” and that the “admission” have been made by “an
alien lawfully admitted for permanent residence.” 11
V. Conclusion
In sum, under the first step of the Chevron test, we find
that the meaning of the statute is clear and unambiguous.
Given the clarity of the statute, we need not reach the second
step of the Chevron test. We will grant the petition, vacate
the BIA’s decision and remand this matter to the BIA for
further proceedings consistent with this opinion.
10
The Fourth Circuit agreed with the Fifth Circuit’s
reasoning on this point. Bracamontes v. Holder, 675 F.3d
380, 389 (4th Cir. 2012).
11
Bracamontes, 675 F.3d at 385-6; Martinez, 519 F.3d
at 544, 546; Lanier v. Att’y Gen., 631 F.3d 1363, 1366-67
(11th Cir. 2011).
18