Dobrova v. Holder, No. 09-2046 (2d Cir. 2010)

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09-2046-ag Dobrova v. Holder UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 1 2 3 August Term 2009 4 5 6 7 (Argued: January 22, 2010 Decided: June 9, 2010) 8 Docket No. 09-2046-ag 9 10 _____________________________________ 11 12 FATON DOBROVA, Petitioner, 13 14 15 -v.- 16 17 ERIC H. HOLDER, JR., United States Attorney General, Respondent. _____________________________________ 18 19 20 21 22 Before: WALKER, STRAUB, and LIVINGSTON, Circuit Judges. 23 24 Alien seeks review of Board of Immigration Appeals decision finding him 25 statutorily ineligible for a discretionary waiver of inadmissibility pursuant to 26 Section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h), on the 27 ground that as an alien who has previously been admitted to the United States 28 for lawful permanent residence, he has since the date of such admission been 29 convicted of an aggravated felony and is also unable to establish seven years of 30 continuous lawful residency in the United States immediately preceding the 31 initiation of proceedings to remove him. 1 2 3 4 5 Petition denied. MATTHEW L. GUADAGNO (JULES E. COVEN & KERRY W. BRETZ, on the brief), Bretz & Coven LLP, New York, N.Y., for Petitioner. 6 7 8 9 10 11 12 13 REMI ADALEMO, Attorney, Office of Immigration Litigation (TONY WEST, Assistant Attorney General & LUIS E. PEREZ, Senior Litigation Counsel, Office of Immigration Litigation, on the brief), U.S. Department of Justice, Civil Division, Washington, D.C., for Respondent. 14 15 16 DEBRA ANN LIVINGSTON, Circuit Judge: 17 This petition calls upon us to interpret the word previously as it is used 18 in Section 212(h) of the Immigration and Nationality Act ( INA ), 8 U.S.C. 19 § 1182(h), related to waivers of inadmissibility. Petitioner Faton Dobrova seeks 20 review of an April 16, 2009 decision of the Board of Immigration Appeals ( BIA ), 21 In re Dobrova, No. A 036 269 650 (B.I.A. Apr. 16, 2009), dismissing his appeal 22 from a November 27, 2007 decision and order of Immigration Judge ( IJ ) 23 Annette S. Elstein, No. A 036 269 650 (Immig. Ct. N.Y. City Nov. 27, 2007), 24 finding him ineligible for a waiver of inadmissibility pursuant to Section 212(h), 25 denying his application for adjustment of status, and ordering him removed. 26 The BIA determined that in May 1983 Dobrova had previously been admitted 27 to the United States as an alien lawfully admitted for permanent residence and 2 1 that Section 212(h) therefore rendered him ineligible for a waiver of 2 inadmissibility on two separate grounds: (1) that since the date of this 3 admission, he had been convicted of an aggravated felony; and (2) that he had 4 not lawfully resided continuously in the United States for a period of at least 5 seven years immediately preceding the initiation of proceedings to remove him. 6 Dobrova argues that Section 212(h) is inapplicable here on the theory that, 7 although he was lawfully admitted for permanent residence in 1983, his most 8 recent 2001 entry to the United States was deemed by the IJ to have been 9 unlawful so that he is not an alien who has previously meaning most 10 recently been admitted for lawful permanent residence for the purpose of 11 Section 212(h). Because we find the relevant provision to be unambiguous and 12 Dobrova s interpretation of previously, as used in Section 212(h), to be in error, 13 we deny Dobrova s petition for review. 14 BACKGROUND 15 Dobrova, a native of the former Yugoslavia and a citizen of Macedonia, 16 entered the United States at Anchorage, Alaska on May 31, 1983, as a lawful 17 permanent resident ( LPR ). On March 16, 1988, he was convicted of sexual 18 abuse of a minor in the second degree in violation of Alaska Statute 19 § 11.41.436(a)(1), an offense he committed on June 26, 1987. He was sentenced 20 to four years imprisonment, with two years suspended, and to three years 3 1 probation. 2 On September 15, 1988, the former Immigration and Naturalization 3 Service ( INS )1 filed an Order to Show Cause charging that Dobrova was subject 4 to deportation under former INA § 241(a)(4) as an alien who had been convicted 5 of a crime involving moral turpitude the Alaska sexual abuse of a minor 6 conviction committed within five years of entry and for which he received a 7 sentence of confinement for a year or more. On June 29, 1989, an IJ issued a 8 decision ordering Dobrova deported to Yugoslavia. 9 appealed to the BIA, but did not seek this Court s review of the BIA s decision. 10 Dobrova unsuccessfully He was deported on November 16, 1989. 11 Sometime in 2000 over ten years later Dobrova s United States citizen 12 wife applied for and received a reentry permit for Dobrova. On February 19, 13 2001, Dobrova entered the United States ostensibly as an LPR after he 14 presented the reentry permit and his defunct permanent resident card. Some 15 five years later, on or about March 30, 2006, Dobrova was apprehended and 16 detained at a federal detention facility.2 17 removal proceedings against Dobrova by issuing a Notice to Appear ( NTA ). That same day, DHS commenced 1 The INS s immigration enforcement functions are now handled by the Department of Homeland Security ( DHS ). See Ali v. Mukasey, 529 F.3d 478, 482 n.4 (2d Cir. 2008). 2 Dobrova was subsequently released on bond. 4 1 The NTA alleged, inter alia, that Dobrova was admitted to the United States on 2 February 19, 2001 as a lawful permanent resident, a status Dobrova was not 3 entitled to. 4 On April 14, 2006, Dobrova s United States citizen son filed an I-130 visa 5 petition to classify Dobrova as an immediate relative under 8 U.S.C. § 1151(b), 6 INA § 201(b), which exempts certain categories of aliens such as children, 7 spouses, and parents of a United States citizen from numerical visa 8 limitations. 8 U.S.C. § 1151(b). In conjunction with his son s visa petition, 9 Dobrova filed an application in December 2006 to adjust status pursuant to 8 10 U.S.C. § 1255, INA § 245, which allows certain aliens physically present in the 11 United States to apply for adjustment of status to that of an alien lawfully 12 admitted for permanent residence. 8 U.S.C. § 1255(i). Because of his prior 13 criminal conviction for a crime involving moral turpitude, which rendered him 14 statutorily inadmissible pursuant to INA § 212(a)(2), 8 U.S.C. § 1182(a)(2), 15 Dobrova also filed an application for a waiver of inadmissibility under 16 Section 212(h). 17 At his January 9, 2007 removal hearing, Dobrova conceded his 18 removability and requested relief in the form of adjustment of status in 19 conjunction with a waiver of inadmissibility. Citing Section 212(h), DHS moved 20 to pretermit Dobrova s requested relief, arguing that Dobrova was statutorily 5 1 ineligible since he had been previously admitted as an LPR and then convicted 2 of an aggravated felony the Alaska conviction and because he was unable to 3 establish that he had resided continuously in the United States for the requisite 4 seven years immediately preceding the date of proceedings to remove him. The 5 IJ adjourned the hearing to allow the parties to brief this issue. 6 Dobrova did not contest before the IJ that he was not entitled to be 7 admitted as a lawful permanent resident when he reentered the United States 8 in 2001. He argued that this most recent entry was nevertheless the controlling 9 event for determining Section 212(h) s applicability and that precisely because 10 this most recent entry was not a lawful admission for permanent residence, 11 Section 212(h) did not apply to him. Dobrova contended that previously, as 12 used in Section 212(h), denotes most recently and that because he had not been 13 most recently admitted to the United States as an alien lawfully admitted for 14 permanent residence, Section 212(h) was inapplicable. The IJ rejected this 15 argument, determining on November 27, 2007 in a written decision that Dobrova 16 was ineligible for a waiver of inadmissibility pursuant to Section 212(h). Relying 17 on Dobrova s first admission to the United States in 1983 as an LPR, the IJ 18 concluded that Dobrova s prior conviction and failure to satisfy the lawful 19 continuous residency requirement disqualified him from Section 212(h) 6 1 eligibility.3 Dobrova appealed to the BIA, which, on April 16, 2009, held that 2 since Dobrova was previously . . . admitted to the United States as a 3 permanent resident in 1983 and had subsequently been convicted of an 4 aggravated felony and had failed to establish seven years of continuous lawful 5 residence before the initiation of removal proceedings, Dobrova was ineligible for 6 a Section 212(h) waiver. 7 Dobrova timely appealed the BIA s decision to this Court. DISCUSSION 8 9 Where, as here, the BIA adopts the IJ s reasoning and offers additional 10 commentary, we review the decision of the IJ as supplemented by the BIA. 11 Wala v. Mukasey, 511 F.3d 102, 105 (2d Cir. 2007). 12 interpretation of immigration statutes is generally entitled to Chevron deference, 13 interpretations in non-precedential unpublished BIA decisions, as in the instant 14 case, are not so entitled. Mendis v. Filip, 554 F.3d 335, 338 (2d Cir. 2009); 15 Garcia-Padron v. Holder, 558 F.3d 196, 199 (2d Cir. 2009). 16 unpublished BIA opinions are entitled to Skidmore deference or whether they 17 are reviewed de novo is an open question in this Circuit. Mendis, 554 F.3d at 3 While the BIA s Whether The IJ also noted that even counting Dobrova s second entry to the United States as the controlling date for the purpose of determining Section 212(h) s applicability, Dobrova would still be ineligible for a waiver of inadmissibility because Dobrova could not establish seven years of continuous lawful residence before the initiation of removal proceedings in 2006. 7 1 338 n.3. We need not answer that question here, however, because even on de 2 novo review, we find the meaning of previously in Section 212(h) to be clear 3 and unambiguous. Although this Court has, in some circumstances, remanded 4 to the BIA so that the BIA could by published opinion interpret a statute it is 5 charged with enforcing, see, e.g., Jian Hui Shao v. BIA, 465 F.3d 497, 502-03 (2d 6 Cir. 2006), since here we determine that the text of the relevant statute is clear, 7 and the only question presented on appeal is a purely legal one, remand to the 8 BIA for precedential interpretation in the first instance is unnecessary, see 9 Phong Thanh Nguyen v. Chertoff, 501 F.3d 107, 111 (2d Cir. 2007). 10 Pursuant to Section 212(h), the Attorney General may, in his discretion, 11 waive certain grounds of inadmissibility, including inadmissibility for 12 commission of a crime of moral turpitude. 8 U.S.C. § 1182(h); Jankowski- 13 Burczyk v. INS, 291 F.3d 172, 175 & n.1 (2d Cir. 2002). Section 212(h) provides, 14 however, that 15 16 17 18 19 20 21 22 23 24 [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 proceedings to remove the alien from the United States. 25 26 8 U.S.C. § 1182(h) (emphasis added). 8 1 Disputed in the instant case is the interpretation of previously in the 2 phrase has previously been admitted to the United States as an alien lawfully 3 admitted for permanent residence. The government argues and the IJ and 4 BIA determined that an alien who has previously been admitted to the 5 United States as an LPR denotes an alien who has been so admitted at any time 6 in the indefinite past. 7 previously in the statute is ambiguous because it could mean either, as the 8 government urges, at any time prior or alternatively could mean the most 9 recent, or last time. Pet. Br. at 15-16. Under the latter interpretation, Dobrova 10 contends that since his most recent entry was not as an LPR (since when he was 11 admitted in 2001 he was erroneously admitted as an LPR), he is therefore not an 12 alien who has previously been admitted for lawful permanent residence. Id. 13 at 16. That is, Dobrova urges a reading of Section 212(h) that looks only to the 14 alien s most recent entry to determine whether he is statutorily precluded from 15 obtaining a waiver of inadmissibility. 16 Dobrova instead argues that the use of the term [S]tatutory analysis necessarily begins with the plain meaning of a law s 17 text and, absent ambiguity, will generally end there. 18 Napolitano, 582 F.3d 403, 406 (2d Cir. 2009) (alteration in original) (quoting 19 Puello v. BCIS, 511 F.3d 324, 327 (2d Cir. 2007)). 20 ascertaining Congress s intent, if the statutory text is unambiguous, no further 9 Bustamante v. This is because, in 1 inquiry is necessary. Clark v. Astrue, 602 F.3d 140, 147 (2d Cir. 2010) (quoting 2 Snell Island SNF LLC v. NLRB, 568 F.3d 410, 415 (2d Cir. 2009)). 3 conducting such an analysis, we review the statutory text, considering the 4 ordinary or natural meaning of the words chosen by Congress, as well as the 5 placement and purpose of those words in the statutory scheme. United States 6 v. Aguilar, 585 F.3d 652, 657 (2d Cir. 2009) (internal quotation marks omitted). 7 We note, moreover, that Congress use of a verb tense is significant in 8 construing statutes. Barscz v. Dir., Office of Workers Comp. Programs, 486 9 F.3d 744, 750 (2d Cir. 2007) (quoting United States v. Wilson, 503 U.S. 329, 333 10 In (1992)). 11 Here, the ordinary, common meaning of previously is beforehand, 12 hitherto, antecedently. Webster s Third New Int l Dictionary 1798 (2002); see 13 also Oxford English Dictionary, Vol. XII 448 (2d ed. 1991) (defining previously 14 to mean [a]t a previous or preceding time; before, beforehand, antecedently ). 15 Contrary to Dobrova s suggestion, previously, an adverb, does not commonly 16 refer to the most recent occurrence of action, but to action that has taken place 17 sometime in the indefinite past. A novel previously available only in hardcover 18 may thus have been published many times in hardcover before appearing in 19 paperback, but it would be misleading to use this phrase to refer to a book that 20 was published in paperback and then most recently in hardcover only last year. 10 1 Likewise, an aging singer whose handbills proclaim previously at La Scala 2 may hope that her audience takes this to refer to some time in the relevant past, 3 but she has not affirmatively stated that her most recent past performance was 4 in Milan. 5 Congress s use of the present perfect tense has . . . been admitted is 6 significant here. The present perfect tense refers to (1) a time in the indefinite 7 past . . . , or (2) a past action that comes up to and touches the present. 8 Chicago Manual of Style ¶ 5.119 (15th ed. 2003). Use of this tense evinces 9 Congress s intent to include any previous admission for lawful permanent 10 residence within the ambit of Section 212(h), including admission in the 11 indefinite past. Dobrova argues that this interpretation of the statute renders 12 meaningless the word previously, thus violating the canon of statutory 13 construction holding that we disfavor interpretations of statutes that render 14 language superfluous. Mendez v. Holder, 566 F.3d 316, 321-22 (2d Cir. 2009) 15 (internal quotation marks omitted). We disagree. 16 perfect tense can refer either to a time in the indefinite past or a past action that 17 has continuing relevance that comes up to and touches the present. Use of 18 previously in Section 212(h) therefore clarifies that the statute does not apply 19 only to aliens who were and still are admitted as LPRs, but also to those who 20 were at some earlier time admitted as LPRs but, as in the instant case, have had 11 As explained, the present 1 their LPR status terminated and are inadmissible but seeking a waiver. 2 We are further persuaded of our construction of previously as used in 3 Section 212(h) by examining the meaning of the phrase lawfully admitted for 4 permanent residence, as in Section 212(h) s reference to an alien who has 5 previously been admitted to the United States as an alien lawfully admitted for 6 permanent residence. [A]dmission and admitted for purposes of the INA 7 refer to the lawful entry of the alien into the United States after inspection and 8 authorization by an immigration officer. 8 U.S.C. § 1101(a)(13)(A). Lawfully 9 admitted for permanent residence means the status of having been lawfully 10 accorded the privilege of residing permanently in the United States as an 11 immigrant in accordance with the immigration laws, such status not having 12 changed. Id. at § 1101(a)(20). Such status terminates upon entry of a final 13 administrative order of exclusion, deportation, or removal. 8 C.F.R. § 1.1(p). 14 Dobrova was therefore admitted in 1983 as an LPR, but his status as such 15 terminated upon his 1989 order of deportation. Section 212(h) does not suggest 16 that an alien whose LPR status was terminated by deportation in accordance 17 with 8 C.F.R. § 1.1(p) is no longer an alien who has previously been admitted 18 as an LPR under 8 U.S.C. § 1101(a)(13)(A). 19 deportation, was no longer an LPR, his deportation and change of status did not 20 alter that he was previously lawfully admitted as such. If this were not the case 12 Although Dobrova, after his 1 then a person in Dobrova s situation, having had his status as an LPR revoked 2 and having been deported because of his conviction of a crime of moral turpitude, 3 could potentially become eligible for a waiver of inadmissibility, despite the fact 4 that his crime constituted an aggravated felony for the purpose of Section 212(h), 5 simply by virtue of being readmitted into the United States, even unlawfully. 6 The point can be generalized. Under Dobrova s suggested interpretation 7 of Section 212(h), any alien who was admitted as an LPR but who subsequently 8 committed an aggravated felony, was ordered removed from the country, and 9 then entered again illegally, would not be statutorily precluded from seeking a 10 waiver of inadmissibility on the basis of this conviction. Yet if that same alien 11 had remained outside the country he would be ineligible for such relief. We do 12 not think that Congress intended an interpretation that rewards an alien for 13 reentering the country illegally after being removed. 14 We therefore conclude that Dobrova is an alien who has previously been 15 admitted to the United States as an alien lawfully admitted for permanent 16 residence since, in 1983, he was admitted as an LPR. We further agree with the 17 BIA that he is ineligible for relief under Section 212(h) both because he has since 18 been convicted of an aggravated felony and because he has not established the 19 requisite seven years of lawful continuous residency immediately preceding the 20 date of initiation of the proceedings to remove him. 13 1 2 3 4 We have considered the remainder of Dobrova s arguments and consider them to be without merit. CONCLUSION For the foregoing reasons, we deny Dobrova s petition for review. 14

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