Charles Eleri v. Jefferson Sessions , 852 F.3d 879 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLES CHUKWUMEZE ELERI, No. 13-73455
AKA Charles C. Eleri,
Petitioner, Agency No.
A044-843-028
v.
JEFFERSON B. SESSIONS III, Attorney OPINION
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 8, 2016
Pasadena, California
Filed March 24, 2017
Before: Jacqueline H. Nguyen and John B. Owens, Circuit
Judges, and Edward R. Korman,* District Judge.
Opinion by Judge Korman
*
The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
2 ELERI V. SESSIONS
SUMMARY**
Immigration
The panel denied Charles Chukwumeze Eleri’s petition
for review of the Board of Immigration Appeals’ decision
finding him ineligible for a waiver of inadmissibility under
the aggravated felony bar.
The panel held that because Eleri was admitted to the
United States as a conditional permanent resident, he is “an
alien who has previously been admitted to the United States
as an alien lawfully admitted for permanent residence.” The
panel held that Eleri was therefore ineligible for a waiver of
inadmissibility pursuant to 8 U.S.C. § 1182(h) because he had
an aggravated felony conviction.
COUNSEL
Joseph LaCome (argued), San Rafael, California, for
Petitioner.
Colette Jabes Winston (argued), Attorney; Janette L. Allen
and Kiley Kane, Senior Litigation Counsel; Benjamin C.
Mizer, Principal Deputy Assistant Attorney General; Office
of Immigration Litigation, Civil Division, Washington, D.C.;
for Respondent.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ELERI V. SESSIONS 3
OPINION
KORMAN, District Judge:
The issue presented here is whether the Attorney General
has the discretion to grant a waiver of inadmissibility to a
conditional permanent resident who has been convicted of an
aggravated felony as opposed to a lesser offense involving
moral turpitude. 8 U.S.C. § 1182(a)(2)(A)(i)(I). In the latter
case, the Attorney General may grant a waiver of
inadmissibility if “the alien’s denial of admission would
result in extreme hardship” to his U.S. citizen spouse. Id. at
§ 1182(h)(1)(B). Such a waiver is barred, however, if the
alien has been convicted of an aggravated felony. Id. at
§ 1182(h).
Before turning to the specific facts of this case, we
provide a brief overview of the statutory scheme as it applies
to conditional permanent residents. Specifically, a
conditional permanent resident is an alien admitted to the
United States for permanent residence on a conditional basis
due to, inter alia, his marriage to a U.S. citizen. See 8 U.S.C.
§ 1186a(a)(1), (h)(1); see also Vasquez v. Holder, 602 F.3d
1003, 1006 (9th Cir. 2010). “Unless otherwise specified, the
rights, privileges, responsibilities and duties which apply to
all other lawful permanent residents apply equally to
conditional permanent residents, including but not limited to
. . . the privilege of residing permanently in the United States
as an immigrant.” 8 C.F.R. § 216.1.
An alien must file a petition to eliminate his conditional
status within the 90-days before “the second anniversary of
the alien’s obtaining the status of lawful admission for
permanent residence,” and subsequently attend an interview.
4 ELERI V. SESSIONS
8 U.S.C. § 1186a(c)(1), (d)(2)(A). The petition will be
granted, “effective as of the second anniversary of the alien’s
obtaining the status of lawful admission for permanent
residence,” upon a determination that the alien’s marriage
was entered into lawfully, not annulled or terminated except
through death of a spouse, and not entered into for the
purpose of procuring his admission. Id. at
§ 1186a(c)(3)(A)–(B), (d)(1)(A). The two-year conditional
period prescribed by these provisions “strikes at the
fraudulent marriage by the simple passage of time [because]
it is difficult to sustain the appearance of a bona fide marriage
over a long period.” H.R. REP. NO. 99-906, at 9–10 (1986).
Against this backdrop, we turn to the facts of this case.
On March 21, 1995, Charles Chukwumeze Eleri (“Eleri”), a
native and citizen of Nigeria, entered the United States as a
conditional permanent resident based on his marriage to his
first wife, a U.S. citizen. Eleri’s status as a conditional
permanent resident was automatically terminated in 1997 due
to his failure to file the required petition. 8 C.F.R.
§ 216.4(a)(6). Removal proceedings were not initiated by the
Department of Homeland Security (“DHS”) until
2011—fourteen years later. The apparent impetus for these
proceedings was Eleri’s 2009 conviction for forcible rape of
a 19-year-old woman with the mental capacity of a 13-year-
old girl. In 2012, Eleri’s second wife filed a Form I-130 visa
petition on his behalf. Notwithstanding the pending removal
proceedings, the DHS granted the visa petition, which is “the
first step in the process towards a ‘family-based adjustment
of status.’” Montoya v. Holder, 744 F.3d 614, 616 (9th Cir.
2014) (citing Matter of Hashmi, 24 I. & N. Dec. 785, 789
(BIA 2009)).
ELERI V. SESSIONS 5
Appearing before an Immigration Judge (“IJ”), Eleri
sought adjustment of status under 8 U.S.C. § 1255(a), in
conjunction with a waiver of inadmissibility pursuant to
§ 1182(h)(1)(B). The IJ found, however, that Eleri’s
conviction for rape constituted both an aggravated felony and
a crime involving moral turpitude. The IJ thus held that Eleri
was not entitled to a waiver of inadmissibility. On appeal to
the Board of Immigration Appeals (“BIA”), Eleri argued that
“because he was admitted as a permanent resident on a
conditional basis rather than as a lawful permanent resident,”
the aggravated felony bar to waiver did not apply to him. In
an unpublished decision, the BIA agreed with the IJ’s
determination that Eleri was ineligible for a waiver of
inadmissibility.
After the BIA affirmed the IJ’s order, Eleri petitioned for
review. We have jurisdiction to review de novo questions
involving statutory construction. Negrete-Ramirez v. Holder,
741 F.3d 1047, 1050 (9th Cir. 2014).
DISCUSSION
A question of statutory interpretation “begins with the
plain language of the statute.” Jimenez v. Quarterman,
555 U.S. 113, 118 (2009) (citation omitted). “When an
examination of the plain language of the statute, its structure,
and purpose clearly reveals congressional intent, our judicial
inquiry is complete. But if the plain meaning of the statutory
text remains unclear after consulting internal indicia of
congressional intent, we may then turn to extrinsic indicators,
such as legislative history, to help resolve the ambiguity.”
Hernandez v. Williams, Zinman & Parham PC, 829 F.3d
1068, 1073 (9th Cir. 2016) (internal quotation marks and
citations omitted). Moreover, when a statute is ambiguous
6 ELERI V. SESSIONS
and we have the benefit of an administrative agency’s
interpretation, we may defer to it if it is “based on a
permissible construction of the statute.” Chevron, U.S.A.,
Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984).
Section 1182(h) precludes a waiver of inadmissibility “in
the case of an alien who has previously been admitted to the
United States as an alien lawfully admitted for permanent
residence if . . . since the date of such admission the alien has
been convicted of an aggravated felony.” In Negrete-
Ramirez, we held that “Congress defined the class of those
who are barred from seeking a § [1182(h)] waiver as
[permanent residents] who obtained their status prior to or at
the time they physically entered into the United States.”
741 F.3d at 1053 (citations omitted). The record reflects that
Eleri obtained his status as a conditional permanent resident
on February 3, 1995, prior to the date of his entry into the
United States on March 21, 1995.
Nevertheless, Eleri argues that he did not obtain
permanent resident status because he was admitted as a
conditional permanent resident. Thus, he did not fall within
the category of “an alien lawfully admitted for permanent
residence.” 8 U.S.C. § 1182(h). Put another way, he argues
that permanent residents are not eligible for a waiver of
inadmissibility if they commit an aggravated felony, while
those who are admitted as permanent residents on a
conditional basis are eligible for such a waiver.
The implausibility of this argument is not unlike that of
the one made in Hing Sum v. Holder, 602 F.3d 1092 (9th Cir.
2010). There, an alien had “acquired permanent residence
through fraud or misrepresentation.” Id. at 1095. The alien
argued that, because of the fraud and misrepresentation, “he
ELERI V. SESSIONS 7
was never lawfully admitted [to the United States] for the
purpose of the [aggravated felony] bar.” Id. Invoking the
principle that “when possible, we interpret statutes so as to
preclude absurd results,” Andreiu v. Ashcroft, 253 F.3d 477,
482 (9th Cir. 2001) (en banc), we held that “[t]here is no
reason why Congress would give a pass to non-citizens who
had fraudulently obtained [permanent resident] status while
barring from relief non-citizens who had legitimately
obtained [permanent resident] status.” Hing Sum, 602 F.3d
at 1097.
We likewise see no reason in this case why Congress
would draw Eleri’s desired distinction between permanent
residents and conditional permanent residents for the purpose
of determining eligibility for a waiver of inadmissibility.
Indeed, in Paek v. Attorney General of the United States, the
Third Circuit held that the “language of the INA
[Immigration and Nationality Act] indicates that an alien
admitted as a [conditional permanent resident] constitutes ‘an
alien who has previously been admitted to the United States
as an alien lawfully admitted for permanent residence.’”
793 F.3d 330, 333 (3d Cir. 2015) (quoting 8 U.S.C.
§ 1182(h)). In doing so, Paek affirmed the BIA’s published
decision to that effect. Id.; see Matter of Paek, 26 I. & N.
Dec. 403, 407 (BIA 2014). Paek also pointed to the multiple
statutory references to the “second anniversary of the alien’s
obtaining the status of lawful admission for permanent
residence as being synonymous with the second anniversary
of the alien’s admission as a [conditional permanent
resident].” 793 F.3d at 335 (internal quotation marks and
citations omitted). Moreover, Paek reasoned that the INA
“repeatedly discusses [conditional permanent residents]
having their status of lawful admission for permanent
residence ‘terminated,’” which strongly suggests that
8 ELERI V. SESSIONS
conditional permanent residents already possess permanent
resident status, because otherwise such status could not be
terminated. Id. at 336 (citations omitted).
We find the Third Circuit’s reasoning persuasive and
adopt its holding that an alien admitted as a conditional
permanent resident constitutes an “alien who has previously
been admitted to the United States as an alien lawfully
admitted for permanent residence.” 8 U.S.C. § 1182(h).
While a conditional permanent resident has permanent
resident status on a conditional basis, he nonetheless enjoys
the full rights and privileges of such status. Indeed, as we
observed earlier, a DHS regulation provides that “the rights,
privileges, responsibilities and duties which apply to all other
lawful permanent residents apply equally to conditional
permanent residents, including but not limited to . . . the
privilege of residing permanently in the United States as an
immigrant.” 8 C.F.R. § 216.1.
Moreover, Eleri’s argument places undue weight on the
term “conditional.” Eleri’s status is not materially different
from the status of what the Third Circuit has called a “full-
fledged” permanent resident, Gallimore v. Attorney General
of the United States, 619 F.3d 216, 229 (3d Cir. 2010), or
even that of a naturalized citizen. Each may maintain their
status on the condition that they did not obtain it as a result of
fraud. Thus, naturalized citizens may have their citizenship
revoked for willful misrepresentations during the
naturalization process, 8 U.S.C. § 1451(a), and permanent
residents may be deported for any number of reasons,
including document fraud during the application process for
permanent residency. See 8 U.S.C. § 1227(a)(3)(C)(i);
8 U.S.C. § 1324c(a). Notwithstanding Eleri’s status as a
“conditional” permanent resident, the condition is simply
ELERI V. SESSIONS 9
that, like the “full-fledged” permanent resident and the
naturalized citizen, he has not obtained his status as a result
of fraud during the application process. See 8 U.S.C.
§ 1186a(b)(1); 8 U.S.C. § 1227(a)(1)(D)(i).
Thus, as the Third Circuit has explained, the INA
“equates conditional [permanent residents] with ‘full-fledged’
[permanent residents], except to the extent—but only to the
extent—that § 1186a prescribes additional obligations.”
Gallimore, 619 F.3d at 229. The “additional obligations,”
however, only pertain to procedures to ensure that the
marriage that afforded an alien the status of a conditional
permanent resident was not fraudulent. See 8 U.S.C.
§ 1186a(a)–(c). “And so long as a conditional [permanent
resident] complies with those obligations, they do not affect
the alien’s ‘privilege of residing permanently in the United
States as an immigrant in accordance with the immigration
laws.’” Gallimore, 619 F.3d at 229 (quoting 8 C.F.R.
§ 216.1).
Lastly, even if the statutory language is “ambiguous with
respect to the specific issue,” the BIA’s interpretation is
“based on a permissible construction of the statute[s],”
Chevron, 467 U.S. at 843, and “[w]e apply Chevron
deference to the [BIA’s] interpretations of ambiguous
immigration statutes, if the [BIA’s] decision is a published
decision or an unpublished decision directly controlled by [a]
published decision.” Toor v. Lynch, 789 F.3d 1055, 1059 (9th
Cir. 2015) (internal quotation marks and citations omitted).
While the BIA’s decision in this case was unpublished, the
BIA did publish a more recent decision in another case,
which held that an alien who was admitted as a conditional
permanent resident was subject to the aggravated felony bar
to waiver. See Paek, 26 I. & N. at 407.
10 ELERI V. SESSIONS
In the present case, Eleri was admitted to the United
States as a conditional permanent resident in March 1995.
Eleri thus constitutes “an alien who has previously been
admitted to the United States as an alien lawfully admitted for
permanent residence.” 8 U.S.C. § 1182(h). As such, Eleri is
subject to the aggravated felony bar to waiver.
CONCLUSION
Accordingly, we DENY the petition for review.