Ali Fares v. William Barr

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALI FARES, No. 13-71916
Petitioner,
Agency No.
v. A047-654-200
WILLIAM P. BARR, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 22, 2019
Honolulu, Hawaii
Filed November 25, 2019
Before: Susan P. Graber, Milan D. Smith, Jr.,
and Paul J. Watford, Circuit Judges.
Opinion by Judge Graber
2 FARES V. BARR
SUMMARY*
Immigration
Granting Ali Fares’s petition for review of a decision of
the Board of Immigration Appeals that concluded that he was
ineligible for a waiver of removability under
section 237(a)(1)(H) of the Immigration and Nationality Act
(“INA”), the panel held that a noncitizen who seeks a
§ 237(a)(1)(H) waiver is “otherwise admissible” even though
he failed to return to his country of origin for at least two
years, as required by INA § 212(e), and remanded.
Petitioner entered the United States as a nonimmigrant J-1
exchange visitor and was subject to INA § 212(e), under
which he was ineligible to apply for an immigrant visa,
permanent residence, or two types of nonimmigrant visas
until he had departed from the United States and then had
resided and been physically present in his country of
nationality or of last residence for at least two years.
Petitioner failed to fulfill this requirement, but was later
admitted as a lawful permanent resident in 2000. In his
application for admission, Petitioner inaccurately checked
“no” in response to a question asking if he was an alien who
had not fulfilled the two-year residency requirement. The
immigration authorities did not notice the falsity at that time,
but when Petitioner later applied for naturalization, his
application was denied on the ground that he had not been
“lawfully admitted” as a permanent resident because he had
not satisfied the residency requirement of § 212(e).
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
FARES V. BARR 3
In removal proceedings, an immigration judge found
Petitioner removable because, at the time of his application
for admission, he did not possess valid entry documents. He
sought a waiver of removability under INA § 237(a)(1)(H),
which provides a waiver for certain fraud or
misrepresentation and, among other things, required
Petitioner to have been “otherwise admissible” when he
entered in 2000. The IJ and BIA held that petitioner was not
“otherwise admissible” at that time because he had neither
satisfied the residency requirement of § 212(e) nor obtained
a waiver of it.
The panel explained that this court has held that
“otherwise admissible” means not excludable on some
ground other than the entry fraud. Therefore, to qualify for
a § 237(a)(1)(H) waiver, Petitioner had to have been
“admissible” when he entered in 2000, notwithstanding his
entry fraud. The panel also observed that the INA defines
“admission” and “admitted” as “the lawful entry of the alien
into the United States after inspection and authorization by an
immigration officer.” Thus, the central issue was whether a
noncitizen who is subject to § 212(e)’s residency
requirement, but who fails to satisfy that requirement, may
enter the United States lawfully.
Examining the language of the statute, the panel
concluded that § 212(e) does not state that noncitizens subject
to its residency requirement are not “admissible” to the
United States; rather, it provides that they are not “eligible”
for particular forms of admission. The panel explained that
other forms of admission set out in 8 U.S.C. § 1101(a)(15)
remain available. The panel also concluded that the wording
that Congress used elsewhere in § 212 reinforces the panel’s
interpretation of the unambiguous text of § 212(e) and that
4 FARES V. BARR
the panel’s interpretation is also consistent with other
provisions of the immigration laws.
The panel thus concluded that, notwithstanding his failure
to satisfy or receive a waiver of the two-year residency
requirement, Petitioner was admissible under several
provisions of 8 U.S.C. § 1101(a)(15). Therefore, the panel
held that, as a matter of law, Petitioner was “otherwise
admissible” for the purposes of a § 237(a)(1)(H) waiver, and
remanded to the agency for it to use its discretion to
determine whether to grant Petitioner’s waiver.
COUNSEL
Daniel Diskin (argued), Garfield Law Group, Washington,
D.C.; Gordon Yang, Waipahu, Hawaii, for Petitioner.
Sheri R. Glaser (argued), Trial Attorney; Jamie M. Dowd,
Senior Litigation Counsel; Joyce R. Branda, Acting Assistant
Attorney General; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.
OPINION
GRABER, Circuit Judge:
Is a noncitizen who seeks a waiver of removability under
8 U.S.C. § 1227(a)(1)(H) “otherwise admissible,” even
though he failed to return to his country of origin for at least
two years, as required by 8 U.S.C. § 1182(e)? We hold that
the answer is “yes” and, accordingly, grant the petition and
FARES V. BARR 5
remand to the agency for it to use its discretion to determine
whether to grant Petitioner’s requested waiver.
BACKGROUND
Petitioner Ali Fares is a native and citizen of Tunisia. He
entered the United States in 1993 as a nonimmigrant J-1
exchange visitor, pursuant to 8 U.S.C. § 1101(a)(15)(J), to
obtain a Ph.D. Because his graduate program received
funding from the federal government, Petitioner was subject
to § 212(e) of the Immigration and Nationality Act (“INA”),
8 U.S.C. § 1182(e). Under § 212(e), Petitioner was ineligible
to apply for an immigrant visa, permanent residence, or two
types of nonimmigrant visas until he had departed from the
United States and then “resided,” and was “physically
present,” in his country of nationality or of last residence for
at least two years. In December 1999, Petitioner left the
United States to work in Australia, which was neither his
country of nationality nor his last residence.
In December 2000, Petitioner returned to the United
States and was admitted as a lawful permanent resident under
a provision that applies to the spouses of certain immigrants.
In his application for admission, Petitioner inaccurately
checked “no” in response to a question that asked if he was an
“alien who is a former exchange visitor who has not fulfilled
the 2-year foreign residence requirement.” The immigration
authorities did not notice the falsity at that time.
Petitioner applied for naturalization in 2006. Three years
later, the Department of Homeland Security denied his
application on the ground that he was not “lawfully admitted
to the United States as a permanent resident.” Because
Petitioner had not statisfied the residency requirement of
6 FARES V. BARR
§ 212(e), the Department held that he did “not have a lawful
entry into the United States as an immigrant.”
The government initiated removal proceedings in 2010.
During those proceedings, Petitioner conceded, and the
immigration judge (“IJ”) held, that Petitioner was removable
because, at the time of his application for admission, he did
not possess valid entry documents. 8 U.S.C.
§ 1182(a)(7)(A)(i)(I). Petitioner sought a waiver of
§ 212(e)’s residency requirement, which the IJ denied.
Petitioner does not challenge that denial.
Petitioner also sought a waiver of removability under INA
§ 237(a)(1)(H), 8 U.S.C. § 1227(a)(1)(H),1 which requires,
1
The pertinent statutory text provides:
(H) Waiver authorized for certain
misrepresentations
The provisions of this paragraph relating to the
removal of aliens within the United States on the
ground that they were inadmissible at the time of
admission as aliens described in section
1182(a)(6)(C)(i) of this title, whether willful or
innocent, may, in the discretion of the Attorney
General, be waived for any alien (other than an alien
described in paragraph (4)(D)) who—
(i)(I) is the spouse, parent, son, or daughter of a
citizen of the United States or of an alien lawfully
admitted to the United States for permanent residence;
and
(II) was in possession of an immigrant visa or
equivalent document and was otherwise admissible to
the United States at the time of such admission except
FARES V. BARR 7
among other things, that Petitioner have been “otherwise
admissible” to the United States when he entered in
December 2000. The IJ held that Petitioner was not
“otherwise admissible” to the United States at that time
because he had neither satisfied the residency requirement of
§ 212(e) nor obtained a waiver of it.
Petitioner appealed to the Board of Immigration Appeals
(“BIA”), which dismissed the appeal. The BIA held, as a
matter of law, that Petitioner was not eligible for a
§ 237(a)(1)(H) waiver because “he was not ‘otherwise
admissible’ at the time of his admission” in 2000. Petitioner
timely sought our review.
DISCUSSION
We review de novo the BIA’s holdings on questions of
law. Rodriguez v. Holder, 683 F.3d 1164, 1169 (9th Cir.
2012). “Whether an alien is eligible for a waiver [is] a
question of statutory interpretation fit for judicial review.”
Federiso v. Holder, 605 F.3d 695, 699 (9th Cir. 2010). We
begin with the statutory text, Eleri v. Sessions, 852 F.3d 879,
for those grounds of inadmissibility specified under
paragraphs (5)(A) and (7)(A) of section 1182(a) of this
title which were a direct result of that fraud or
misrepresentation.
....
A waiver of removal for fraud or misrepresentation
granted under this subparagraph shall also operate to
waive removal based on the grounds of inadmissibility
directly resulting from such fraud or misrepresentation.
8 U.S.C § 1227(a)(1)(H).
8 FARES V. BARR
882 (9th Cir. 2017); if the text is clear, we do not defer to the
BIA’s interpretation, Federiso, 605 F.3d at 697.
We have interpreted § 237(a)(1)(H) before. In Corona-
Mendez v. Holder, 593 F.3d 1143, 1147 (9th Cir. 2010), we
held that § 237(a)(1)(H) “requires that the court consider
whether the petitioner is inadmissible on more than one
ground at the time of the fraud the petitioner seeks waived.”
Id. (emphasis added). “‘Otherwise admissible’ means not
excludable on some ground other than the entry fraud.”
Vasquez v. Holder, 602 F.3d 1003, 1011 (9th Cir. 2010)
(emphasis added) (brackets omitted); see also Kyong Ho Shin
v. Holder, 607 F.3d 1213, 1220 (9th Cir. 2010) (stating, in the
similar context of INA § 212(k) waivers, that a “common-
sense reading” of “the word ‘otherwise’” means “that the
individual must be admissible ‘other’ than because of [an]
invalid visa” (emphasis added) (citing Corona-Mendez,
593 F.3d at 1146–47)). Therefore, to qualify for a
§ 237(a)(1)(H) waiver, Petitioner must have been
“admissible” in December 2000 notwithstanding his entry
fraud.
The INA defines “admission” and “admitted” as, “with
respect to an alien, the lawful entry of the alien into the
United States after inspection and authorization by an
immigration officer.” 8 U.S.C. § 1101(a)(13)(A).
Admissibility therefore denotes a noncitizen’s general ability
to enter the United States lawfully.
With that background in mind, the central issue is whether
a noncitizen who is subject to § 212(e)’s residency
requirement, but who fails to satisfy that requirement, may
enter the United States lawfully. Section 212(e) states, in
relevant part:
FARES V. BARR 9
No person admitted under section
1101(a)(15)(J) of this title . . . whose
participation in the program for which he
came to the United States was financed . . . by
an agency of the Government of the United
States . . . shall be eligible to apply for an
immigrant visa, or for permanent residence,
or for a nonimmigrant visa under section
1101(a)(15)(H) or section 1101(a)(15)(L) of
this title until it is established that such person
has resided and been physically present in the
country of his nationality or his last residence
for an aggregate of at least two years
following departure from the United States[.]
(Emphasis added.)
Section 212(e) does not state that noncitizens subject to
its residency requirement are not “admissible” to the United
States. Rather, it provides that they are not “eligible” for
particular forms of admission. Other forms of admission, not
specifically barred by the statute, remain available. For
example, § 212(e) does not prohibit admission as a tourist or
business visitor under 8 U.S.C. § 1101(a)(15)(B). See also id.§ 1101(a)(15)(A) (admissible as ambassador), (C) (admissible
due to transit through the United States), (D) (admissible as
crewman), (E) (admissible under treaty of commerce), (M)
(admissible as student), (N) (admissible as parent of special
immigrant), (O)(i) (admissible due to “extraordinary ability
in the sciences”, (Q) (admissible due to cultural exchange
program).
The wording that Congress used elsewhere in § 212
reinforces our conclusion. For example, § 212(a) lists several
10 FARES V. BARR
categories of noncitizens who are “ineligible to receive visas
and ineligible to be admitted to the United States.”
(Emphasis added.) That wording suggests that ineligibility
for some benefits (visas) does not mean blanket ineligibility
for admission. Moreover, Congress used the term
“inadmissible” more than 50 times in § 212, but not once in
§ 212(e). See, e.g., 8 U.S.C. § 1182(a)(2)(A)(i) (“any alien
convicted of . . . a crime involving moral turpitude . . . is
inadmissible”). When interpreting statutes, we must
“presume [that] differences in language like this convey
differences in meaning.” Henson v. Santander Consumer
USA Inc., 137 S. Ct. 1718, 1723 (2017).
Our interpretation also is consistent with other provisions
of the immigration laws. For example, Congress made
certain noncitizens ineligible for cancellation of removal in
8 U.S.C. § 1229b(c), but separated those who fail to satisfy
§ 212(e)’s residency requirement from those who are
“inadmissible.” Compare 8 U.S.C. § 1229b(c)(4) (barring
“[a]n alien who is inadmissible under section 1182(a)(3)”),
with 8 U.S.C. § 1229b(c)(3) (barring “[a]n alien” admitted
under § 1101(a)(15)(J) who is “subject to” § 212(e)’s
residency requirement and has neither “fulfilled that
requirement [n]or received a waiver thereof”).
The text of § 212(e) is unambiguous. Notwithstanding his
failure to satisfy or receive a waiver of the two-year residency
requirement, Petitioner was admissible under several
provisions of 8 U.S.C. § 1101(a)(15). The BIA’s contrary
interpretation contravenes the statute’s text and is, therefore,
an interpretation that we “may not accept.” Federiso,
605 F.3d at 697. As a matter of law, Petitioner was
“otherwise admissible” for purposes of a § 237(a)(1)(H)
waiver notwithstanding § 212(e). We therefore remand to the
FARES V. BARR 11
agency for it to use its discretion to determine whether to
grant Petitioner’s requested waiver.2
PETITION GRANTED; REMANDED.
2
We express no view as to how the agency should exercise its
discretion on remand, nor do we express a view on the effect of a
§ 237(a)(1)(H) waiver, if granted.