Orlando Fernandez Taveras v. Attorney General United States , 731 F.3d 281 ( 2013 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 12-2775
_____________
ORLANDO FERNANDEZ TAVERAS,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A035-362-472
Argued on May 22, 2013
(Opinion filed: October 1, 2013)
BEFORE: RENDELL and GREENAWAY, JR.,
Circuit Judges, ROSENTHAL, District Judge*
Sandra L. Greene, Esquire (Argued)
GreeneFitzgerald Advocates and Consultants
2001 East Market Street, 2nd Floor
York, PA 17402
Counsel for Petitioner
Eric Holder, Jr., Esquire
United States Attorney General
Stuart F. Delery, Esquire
Acting Assistant Attorney General
Civil Division
Cindy S. Ferrier
Assistant Director
Office of Immigration Litigation
Thomas W. Hussey, Esquire
Sunah Lee, Esquire (Argued)
Brooke M. Maurer, Esquire
United States Department of Justice
Office of Immigration Litigation
Civil Division
P.O. Box 878
Ben Franklin Station
Washington, D. C. 20044
Counsel for Respondent
* Honorable Lee H. Rosenthal, United States District Judge
for the Southern District of Texas, sitting by designation.
2
OPINION
RENDELL, Circuit Judge:
Orlando Fernandez Taveras petitions for review of the
Board of Immigration Appeals (“BIA”) June 2012 order of
removal. The removal order was based on two convictions for
petty larceny, both crimes of moral turpitude under the
Immigration and Nationality Act (“INA”). The BIA rejected
Fernandez Taveras’s argument that he was eligible for
adjustment of status or waiver of inadmissibility under §
212(h) of the INA, notwithstanding a 1999 drug conviction.
Fernandez Taveras urged that, because he had previously
been granted a cancellation of removal under INA § 240A(a),
the conviction that formed the basis of the prior removal
proceedings—his 1999 drug conviction—had been “waived”
and could not be relied upon in the later proceeding to render
him statutorily ineligible for adjustment of status and § 212(h)
waiver. The Immigration Judge agreed with Fernandez
Taveras, but the BIA reversed. Fernandez Taveras’s petition
raises this issue, and for the reasons that follow, we will deny
his petition.
I.
Fernandez Taveras, a native and citizen of the
Dominican Republic, entered the United States as a lawful
permanent resident in February 1978. He was one year old at
the time, and has since left the country only twice—once at
age five and again at age thirteen. In December 2009, he
married a United States citizen. He also is a father of two
3
children who are United States citizens: a fifteen-year-old
daughter from a prior relationship, and a five-year-old
daughter with his wife. Additionally, he has other family ties
in the United States, including his mother, siblings, aunts, and
cousins, who are citizens or lawful permanent residents of the
United States.
The Department of Homeland Security (“DHS”)
initiated removal proceedings against Fernandez Taveras in
2003 based upon his 1999 conviction under New York state
law for criminal possession of a controlled substance,
specifically, crack cocaine (the “1999 drug conviction”). The
DHS sought to remove Fernandez Taveras as an alien
deportable for a controlled substance violation, other than a
single offense involving possession for one’s own use of 30
grams or less of marijuana, pursuant to INA § 237(a)(2)(B)(i),
8 U.S.C. § 1227(a)(2)(B)(i). Fernandez Taveras sought
cancellation of removal under INA § 240A(a), 8 U.S.C.
§ 1229b(a), which provides relief from removal for certain
permanent residents who can demonstrate a lengthy physical
presence and substantial ties in the United States, and have
not committed an aggravated felony. INA § 240A(a), 8
U.S.C. § 1229b(a).1 The Immigration Judge (“IJ”) granted
his application for cancellation of removal in 2004, which
terminated the removal proceedings.
Over five years later, in January 2010, the DHS
instituted a second removal proceeding against Fernandez
Taveras. This time, the Notice to Appear charged Fernandez
Taveras with removability under INA § 237(a)(2)(A)(ii), 8
1
Fernandez Taveras’s 1999 drug conviction was not an
aggravated felony.
4
U.S.C. § 1227(a)(2)(A)(ii), as an alien deportable for
committing two or more crimes involving moral turpitude
(“CIMT”). Specifically, Fernandez Taveras’s removal
proceedings arose from two convictions in 2006 and 2008 for
petit larceny under New York state law.
Fernandez Taveras admitted the factual allegations in
the Notice to Appear, and conceded that he was removable as
charged. Fernandez Taveras then sought relief from removal
by filing an application for adjustment of status under INA
§ 245(a), 8 U.S.C. § 1255(a), and an application for a waiver
of inadmissibility under INA § 212(h), 8 U.S.C. § 1182(h).2
The IJ issued an oral decision finding that Fernandez
Taveras was removable as an alien deportable for committing
two CIMT as defined in the statute. However, the IJ granted
Fernandez Taveras a § 212(h) waiver and granted his
application for adjustment of status. Because Fernandez
Taveras’s 1999 drug conviction had been the basis for the
prior proceedings, which resulted in the cancellation of
removal, the IJ accepted Fernandez Taveras’s argument that
he had essentially received a “waiver” of that conviction such
that he could no longer be found inadmissible for that offense
2
Having already received a grant of cancellation of removal
in his first removal proceedings, Fernandez Taveras was
ineligible for a second cancellation of removal. See INA
§ 240A(c)(6), 8 U.S.C. § 1229b(c)(6) (providing that
§ 240A(a) “shall not apply to any . . . alien whose removal
has previously been cancelled under this section”).
5
under INA § 212(a)(2)(A)(i)(II), 8 U.S.C. §
1182(a)(2)(A)(i)(II), or ineligible for § 212(h) waiver.3
The IJ rejected the contrary view of the Fifth Circuit
Court of Appeals in De Hoyos v. Mukasey, 551 F.3d 339, 342
(5th Cir. 2008), finding it distinguishable, in part, because, in
the IJ’s view, it did not account for the INA’s statutory
scheme, particularly § 101(a)(13)(C)(v), 8 U.S.C.
§ 1101(a)(13)(C)(v). As we discuss below, this provision
governs matters concerning whether lawful permanent
residents reentering the United States are “seeking
admission.” The IJ, however, read § 101(a)(13)(C)(v) to
apply to an alien seeking adjustment of status, and to suggest
“that once a waiver is granted for an offense under Section
240A(a) of the INA, that that alien will not be subsequently
inadmissible for that offense.” App. at 49. Accordingly, the
IJ concluded, Fernandez Taveras was “statutorily eligible to
apply for adjusting of status and for a waiver under Section
212(h) of the INA, notwithstanding his drug conviction,
which would [otherwise] render him inadmissible under
Section 212(a)(2) of the INA for a drug offense that cannot be
waived under Section 212(h) of the INA.” Id.
The DHS appealed the IJ’s decision, and the BIA
agreed with the DHS that Fernandez Taveras was ineligible to
adjust his status and receive a § 212(h) waiver due to his 1999
3
While the 1999 drug conviction was not an aggravated
felony that would statutorily disqualify him from cancellation
of removal, as we discuss below, it would render him
ineligible for a § 212(h) waiver and prevent him from
meeting the admissibility prerequisite for an adjustment of
status.
6
drug conviction. The BIA concluded that the IJ had erred in
his “interpretation of the law” by determining that a “grant of
cancellation of removal in prior removal proceedings
precluded consideration of his drug possession conviction” in
connection with Fernandez Taveras’s application for
adjustment of status. App. at 3. This determination, the BIA
concluded, was at odds with the Board’s controlling
precedent, particularly, Matter of Balderas, 20 I. & N. Dec.
389 (BIA 1991), which, the BIA explained, instructs “that a
waiver of inadmissibility or deportability waives only the
ground charged, but not the underlying basis for
removability.” App. at 5. Under Balderas’s rationale,
Fernandez Taveras’s prior drug conviction could statutorily
constitute an underlying basis for inadmissibility and render
him ineligible for a § 212(h) waiver. Id.4 The BIA also
rejected the notion that that the enactment of § 101(a)(13)(C)
somehow affected Balderas’s “longstanding principle,”
instead, concluding that it applied to an entirely different
procedural situation, as we discuss below. Id.
Considering Fernandez Taveras’s applications for
adjustment of status and § 212(h) waiver in light of his 1999
drug conviction, the BIA concluded that his “drug possession
conviction clearly renders him inadmissible under section
212(a)(2)(A)(i)(II) of the Act, so he is not statutorily eligible
for adjustment of status” nor eligible for a Section 212(h)
waiver. Id. The BIA sustained the DHS’s appeal, vacated the
IJ’s decision, and ordered Fernandez Taveras’s removal from
the United States to the Dominican Republic.
4
As we note below, Balderas was decided under the former
INA § 212(c) but the BIA had little difficulty applying it to a
§ 212(h) waiver situation.
7
Fernandez Taveras timely filed this petition for review
of the BIA’s order.
II.
We have general jurisdiction under 8 U.S.C. §
1252(a)(1) to review a final order of removal against an alien.
Generally, we lack jurisdiction to review a final order of
removal against an alien who has been convicted of certain
criminal offenses. 8 U.S.C. § 1252(a)(2)(C). However, we
retain jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to
“review . . . constitutional claims or questions of law raised
upon a petition for review,” and apply de novo review,
subject to applicable canons of deference. Santos-Reyes v.
Att’y Gen., 660 F.3d 196, 199 (3d Cir. 2011).
III.
As illustrated by the divergent rulings of the IJ and
BIA, whether Fernandez Taveras qualifies for relief from
removal hinges on whether his 1999 drug conviction
continues to constitute grounds of ineligibility for adjustment
of status and § 212(h) waiver, notwithstanding the earlier
grant of § 240A(a) cancellation of removal. Fernandez
Taveras cannot meet the statutory requirements for
adjustment of status and § 212(h) waiver if we conclude that
the 1999 drug conviction was appropriately considered. The
1999 drug conviction would be a basis for Fernandez
Taveras’s inadmissibility under § 212(a)(2)(A)(i)(II) for
having violated a law “relating to a controlled substance.” 8
U.S.C.§ 1182(a)(2)(A)(i)(II). Similarly, a § 212(h) waiver
could not apply to “waive the application of . . . subparagraph
(A)(i)(II)” because the 1999 drug conviction did not “relate[]
8
to a single offense of simple possession of 30 grams or less of
marijuana.” 8 U.S.C. § 1182(h). And, without the
availability of a § 212(h) waiver, his inadmissibility would
render him ineligible for adjustment of status and thus relief
from removal. See 8 U.S.C. § 1255(a)(2) (mandating as a
prerequisite for adjustment of status that an alien “is
admissible to the United States for permanent residence”).5
Fernandez Taveras argues that the IJ correctly
excluded his 1999 drug conviction from his second removal
proceeding because he had received a cancellation of removal
under § 240A(a) in a previous proceeding based on that
conviction. Fernandez Taveras urges that the § 240A(a)
grant of relief should have preclusive effect in any subsequent
removal proceeding, barring the use of the same conviction as
a later ground for inadmissibility and ineligibility for
5
As an alternative argument on appeal, Fernandez Taveras
contends that he was denied due process for lack of
opportunity to establish his admissibility, and specifically, to
challenge his inadmissibility on the basis of his 1999 drug
conviction. Fernandez Taveras does not dispute that he
received the 1999 drug conviction and that it was the grounds
for his first removal proceeding. Appellant Br. at 8-9; App. at
16. However, he claims that the factual determination of this
conviction was without sufficient documentary evidence from
the prior removal proceedings. Appellant Br. at 37. We fail
to see how due process was denied when none of the facts of
Fernandez Taveras’s convictions, and particularly his 1999
drug conviction, are in dispute. Rather, Fernandez Taveras
only disputes matters of law relating to his drug conviction,
including whether he is statutorily eligible for admissibility—
issues which we address in this opinion.
9
removal. The DHS advocates for the BIA’s view that a
previous § 240A(a) cancellation of removal does not have
such preclusive effect. We agree and conclude that § 240A(a)
relief merely cancelled the removal in Fernandez Taveras’s
first removal proceeding, and has no bearing on the existence
or effect of the 1999 drug conviction in subsequent removal
proceedings based on other grounds. Specifically, the grant of
§ 240A(a) relief in his first removal hearing has no bearing on
whether that conviction can be considered in connection with
his seeking adjustment of status and § 212(h) waiver in his
second removal proceeding.
In the previous removal proceeding, Fernandez
Taveras sought cancellation of removal, notwithstanding the
DHS’s desire to remove him based on his 1999 drug
conviction. A § 240A(a) cancellation allows the Attorney
General (here, the IJ in the first removal proceeding acted in
this capacity) to provide discretionary relief from removal by
cancelling the removal itself. The nature of this relief is
delineated by the unambiguous language of the statute, which
provides: “The Attorney General may cancel removal in the
case of an alien who is inadmissible or deportable from the
United States . . . .” 8 U.S.C. § 1229b(a) (emphasis added).
Thus, the removal is cancelled, nothing more. The
underlying conviction stands unaffected.
The Fifth Circuit Court of Appeals, when addressing
this very issue in De Hoyos, concluded that the “plain
language suggests that the Attorney General cancels removal
itself, not the underlying conviction” charged in the removal
proceeding. 551 F.3d at 342. Indeed, in spite of a
cancellation of the removal proceeding based upon that
conviction, the “conviction may still be a factor that relates to
admissibility when determining [an] application for
10
adjustment of status” in a later removal proceeding. Id.While the IJ expressed some disagreement with De Hoyos,
we instead find its reasoning sound and adopt it.6
Our interpretation of § 240A(a) is also consistent with
the historical nature of the Attorney General’s discretionary
authority to grant relief from deportation under the INA.
Immigration law has long vested the Attorney General with
broad discretion to admit aliens who were excludable for,
inter alia, certain criminal convictions, and this discretion
continuously has been extended to grant aliens a discretionary
waiver from deportation. See INS v. St. Cyr, 533 U.S. 289,
294 (2001). Former INA § 212(c) was one such statutory
provision that provided for this type of discretionary relief.
Under this provision, “if [waiver was] granted, the
deportation proceeding . . . terminated and the alien
remain[ed] a permanent resident.” Id. at 295. “Because of
the large class of convictions that triggered removability,
section 212(c) was frequently called upon to enable
permanent resident aliens to remain in the country.” Atkinson
v. Att’y Gen., 479 F.3d 222, 226 (3d Cir. 2007). Upon the
enactment of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (“IIRIRA”), Pub. L. 104-208, 110
Stat. 3009 (1996), provisions of the former § 212(c) were
consolidated with other relief known as “suspension of
deportation,” 8 U.S.C. § 1254(a) (1994), to create
“cancellation of removal” relief under § 240A(a). See
Rodriguez-Munoz v. Gonzales, 419 F.3d 245, 247 (3d Cir.
6
The Sixth Circuit Court of Appeals has similarly described
cancellation of removal as “allow[ing] the Attorney General
to cancel removal proceedings for certain resident aliens.”
Kellermann v. Holder, 592 F.3d 700, 705 (6th Cir. 2010).
11
2005); see also 5 Charles Gordon et al., Immigration Law
and Procedure § 64.04 (2013) [hereinafter Immigration Law].
In Balderas, the BIA explained the parameters of
former § 212(c) relief, noting that “section 212(c) merely
provides that an alien may be admitted to or, in the case of
deportation proceedings, allowed to remain in the United
States despite a finding of excludability or deportability.” 20
I. & N. Dec. at 391. “[S]ince a grant of section 212(c) relief
‘waives’ the finding of excludability or deportability rather
than the basis of the excludability itself, the crimes alleged to
be grounds for excludability or deportability do not disappear
from the alien’s record for immigration purposes.” Id. As the
BIA further clarified, “[W]hen section 212(c) relief is
granted, the Attorney General does not issue a pardon or
expungement of the conviction itself. Instead, the Attorney
General grants the alien relief upon a determination that a
favorable exercise of discretion is warranted on the particular
facts presented, notwithstanding the alien’s excludability or
deportability.” Id. (footnote omitted). Relying on regulations
governing the application of a § 212(c) waiver, the BIA also
described the waiver as indefinitely valid once granted, but
that “relief is specific to the grounds stated [in the § 212(c)
application] at the time of the grant of relief.” Id. at 393.
Several courts of appeals, including our own, have
approved the limited “waiver” concept embraced by Balderas
in the context of a § 212(c) waiver that is followed by another
cancellation of removal proceeding, so that a prior conviction,
which was charged as grounds for removal in a proceeding in
which § 212(c) waiver was granted pre-IIRIRA precludes
eligibility for § 240A cancellation of removal in a post-
IIRIRA removal proceeding. See Duhaney v. Att’y Gen., 621
12
F.3d 340, 353 (3d Cir. 2010); Rodriguez-Munoz, 419 F.3d at
248; see also Esquivel v. Mukasey, 543 F.3d 919, 922-23 (7th
Cir. 2008); Peralta-Taveras v. Att’y Gen., 488 F.3d 580, 584-
85 (2d Cir. 2007); Becker v. Gonzales, 473 F.3d 1000, 1003
(9th Cir. 2007); Munoz-Yepez v. Gonzales, 465 F.3d 347, 350
(8th Cir. 2006); Amouzadeh v. Winfrey, 467 F.3d 451, 458-59
(5th Cir. 2006). As we noted in Duhaney v. Attorney
General, “we have determined, relying on Balderas, that the
fact that a petitioner’s deportation based on a particular
conviction has been waived [by former § 212(c)] does not
prevent subsequent consideration of the same underlying
conviction for other purposes.” 621 F.3d at 353 (citing
Rodriguez-Munoz, 419 F.3d at 248). We also explained that
“the scope of a § 212(c) waiver is defined by the basis for
deportability, not the underlying crime itself,” id., and that
although a Ҥ 212(c) waiver remains valid indefinitely, . . . it
applies only to the basis for deportation charged in the
[removal proceeding in which the relief was granted],” id. at
353-54 (emphasis added).
Admittedly, the statutory and procedural posture of
this case—mainly under § 240A(a) and not § 212(c)—while
similar to Balderas, is nonetheless different. However, in De
Hoyos, the Fifth Circuit Court of Appeals addressed whether
former § 212(c) jurisprudence should be considered
instructive as to the effect of the grant of § 240A relief in a
situation such as this, and found that it should. There, an
alien sought relief from removal by applying for adjustment
of status, having previously been granted a § 240A(a)
cancellation of removal in a prior removal proceeding that
was based upon a marijuana possession conviction for an
amount greater than 50 pounds and less than 2,000 pounds.
De Hoyos, 551 F.3d at 340. In the subsequent removal
13
proceedings, instituted based upon two theft convictions, the
IJ denied De Hoyos’s application for adjustment of status, in
part, on account of his marijuana possession conviction,
notwithstanding his prior grant of § 240A(a) cancellation of
removal. Id.
In denying the petition for review of the BIA’s
removal order, the Fifth Circuit Court of Appeals recognized
that former § 212(c) jurisprudence is instructive as to the
nature § 240A(a) relief. Relying on its precedent approving
Balderas, the court acknowledged that “a conviction that was
the focus of a previous waiver under § 212(c) may still be a
grounds of inadmissibility that statutorily precludes an alien’s
acquisition of § 212(h) relief in further removal proceedings.”
Id. at 342. Our sister court concluded that “[a]lthough the
Balderas decision applied to the predecessor of § 240A
(former § 212(c)), the Board’s [Balderas] rationale applies
with equal force to the effect of cancellation of removal on an
underlying conviction.” Id. at 342-43 (internal quotation
marks omitted).
We agree with De Hoyos that former INA § 212(c)
jurisprudence, and particularly Balderas, is applicable in
determining the scope of a § 240A(a) waiver. Thus we look
to our case law, as described in Duhaney, concerning the
effect of a § 212(c) waiver to inform us here. See Duhaney,
621 F.3d at 353-54; see also Rodriguez-Munoz, 419 F.3d at
248. Given that we have previously found that a former
§ 212(c) waiver only cancels the removal proceedings for an
alien who is inadmissible or deportable, we determine the
same is equally true of a § 240A(a) cancellation of removal.
Like a § 212(c) waiver, the effect of § 240A(a) relief is
circumscribed by the grounds of the removal proceeding in
14
which the relief was granted. In Fernandez Taveras’s case, his
§ 240A(a) relief only cancelled his removal proceeding
arising from his 1999 drug conviction under INA
§ 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i). When
granted, the § 240A(a) waiver did not impact the underlying
drug conviction itself, but only the removal arising from that
conviction. It follows that the previous grant of § 240A(a)
relief has no bearing upon whether Fernandez Taveras’s 1999
drug conviction precludes him from satisfying the statutory
requirements for adjustment of status and § 212(h) waiver
sought in the second proceeding. Furthermore, because
Fernandez Taveras’s second removal proceeding is based
upon different grounds of removability than his first removal
proceeding—namely, he is removable for two CIMTs under
INA § 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii)—his
prior § 240A(a) relief has no bearing on the second removal
proceeding. By contrast, because § 240A(a) relief is limited
to the grounds of removal, if his second removal had arisen
from the same exact grounds for removability as his prior
removal proceeding, i.e., his 1999 drug conviction alone
under INA § 237(a)(2)(B)(i), then his previous § 240A(a)
waiver would bar that removal proceeding.
Fernandez Taveras urges, however, that we should
adopt the IJ’s view that INA § 101(a)(13)(C)(v) changes the
calculus and should lead us to conclude that the INA’s
framework affords § 240A(a) relief that is broader than what
we just described. Section 101(a)(13)(C)(v) provides that a
lawful permanent resident “shall not be regarded as seeking
admission” when the alien has committed a criminal offense
that renders him inadmissible but thereafter has been granted
15
an adjustment of status or cancellation of removal relief.7 8
U.S.C. § 1101(a)(13)(C)(v). Somehow equating an
application for adjustment of status with “seeking an
admission,” Fernandez Taveras claims that this provision
applies to him. He contends that, having been granted
§ 240A(a) relief, there is no need to find him admissible—at
least in relation to his 1999 drug conviction—in connection
with his application for adjustment of status.
The BIA correctly rejected this same argument,
concluding that this provision does not apply to applications
for adjustment of status in removal proceedings and is
actually not relevant to the scope of § 240A(a) relief. Indeed,
as the BIA recognized, “section 101(a)(13)(C)(v) is
inapposite to the situation of a lawful permanent resident,
such as the respondent, who was granted cancellation of
7
This provision states:
An 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—
...
(v) has committed an offense identified in
section 1182(a)(2) of this title, unless since
such offense the alien has been granted
relief under section 1182(h) [INA § 212(h)]
or 1229b(a) [INA § 240A(a)] of this title . . .
.
8 U.S.C. § 1101(a)(13)(C)(v).
16
removal after the commission of an offense identified in
section 212(a) of the Act and later seeks to apply for
adjustment of status in new removal proceedings after being
found removable.” App. at 3.
This is because the “admission” to which
§ 101(a)(13)(C) refers is an entirely different and unrelated
immigration procedure from adjustment of status.
Adjustment of status under INA § 245(a) serves to allow an
alien who is already physically located in the United States
after inspection and admittance or parole to obtain lawful
permanent resident status while remaining within the United
States without having to go abroad to obtain an immigrant
visa at a United States consulate. See Malik v. Att’y Gen.,
659 F.3d 253, 257 (3d Cir. 2011). Aliens, like Fernandez
Taveras, invoke this procedure in removal proceedings to
seek relief from removal.
By contrast, as the BIA explained, the “purpose of
section 101(a)(13)(C) is to regulate the circumstances under
which returning lawful permanent residents may reenter the
United States, upon inspection, without being classified as
applicants for admission.” App. at 3.8 Ordinarily under the
8
This view is consistent with the BIA’s prior statements on §
101(a)(13)(C). See Matter of Collado-Munoz, 21 I. & N.
Dec. 1061, 1065 (BIA 1998) (“[T]he . . . section specifically
defines the circumstances under which a returning lawful
permanent resident will be deemed to be seeking admission
into the United States.”); Matter of Guzman Martinez, 25 I. &
N. Dec. 845, 846 (BIA 2012) (“[S]ection 101(a)(13)(C) of the
Act establishes a presumption against treating a returning
17
INA’s statutory scheme, “[a]n alien present in the United
States who has not been admitted or who arrives in the United
States (whether or not at a designated port of arrival . . . )
shall be deemed . . . an applicant for admission.” INA
§ 235(a)(1), 8 U.S.C. § 1225(a)(1). At that time the alien
must establish “clearly and beyond a doubt” entitlement to be
admitted. INA § 235(b)(2)(A), 8 U.S.C. § 1225(b)(2)(A).
However, § 101(a)(13)(C) provides aliens, who have
previously been admitted and hold legal permanent resident
status, with an exception to this rule when they seek to re-
enter the United States at a port of entry after temporarily
leaving the country. In such cases, the legal permanent
resident “shall not be regarded as seeking an admission into
the United States for purposes of the immigration laws”
unless he or she falls into one of the six categories under
§ 101(a)(13)(C), such as having committed a criminal
offense. 8 U.S.C. § 1101(a)(13)(C). “Returning lawful
permanent residents are thus presumptively entitled to retain
that status upon reentry.” Tineo v. Ashcroft, 350 F.3d 382,
386 (3d Cir. 2003). However, “[i]f a lawful permanent
resident falls into one of the six subsections, the clear import
of [§ 101(a)(13)(C)] is that he is stripped of his lawful
permanent residence. That is, he becomes an alien seeking
admission as if he were entering for the first time.” Id.
Under such circumstances, it is incumbent upon the DHS to
sustain the burden of proving that the alien falls within one of
the six categories by clear and convincing evidence. See Doe
v. Att’y Gen., 659 F.3d 266, 272 (3d Cir. 2011).9
lawful permanent resident as an applicant for admission in
removal proceedings.”).
9
Historically under immigration law, aliens were required to
establish their admissibility upon each return to the United
18
The BIA’s recognition that § 101(a)(13)(C)(v) governs
an entirely different and unrelated immigration procedure
from adjustment of status is also consistent with the Supreme
Court’s observation in Vartelas v. Holder, 132 S. Ct. 1479(2012), that § 101(a)(13)(C) applies only to physical reentry,
not adjustment of status. There, the Supreme Court described
the provision as “attach[ing] a . . . disability (denial of
reentry) in respect to past events” like prior convictions, and
that under the provision “lawful permanent residents who had
committed a crime of moral turpitude . . . [and then]
return[ed] from brief trips abroad . . . are subject to admission
procedures, and, potentially, to removal from the United
States on grounds of inadmissibility.” Id. at 1484-85.
Indeed, the Court is in unanimity on this view of
§ 101(a)(13)(C). Id. at 1493 (dissenting, Scalia, J.) (“The
operative provision of this text—the provision that specifies
States after traveling abroad, no matter how short the sojourn;
this was known as the “re-entry doctrine” or “entry doctrine.”
See, e.g., United States ex rel. Volpe v. Smith, 289 U.S. 422,
425-26 (1933); see also Immigration Law § 10.05. The
Supreme Court later in Rosenberg v. Fleuti, 374 U.S. 449,
462 (1963), recognized an exception to the doctrine’s
admissibility requirements for lawful permanent residents
returning from brief trips abroad. Section 101(a)(13)(C)(v),
by providing a similar, albeit narrower, exception to the re-
entry doctrine, is understood to codify certain aspects of
Fleuti. See Tineo, 350 F.3d at 395 (recognizing that §
101(a)(13) “defines the new scheme of ‘admission,’ and it
sets forth those circumstances under which lawful permanent
residents may not retain their status upon reentry, thereby
triggering removal proceedings”); see also 1 Immigration
Law § 10.05.
19
the act that it prohibits or prescribes—says that lawful
permanent residents convicted of [certain] offenses . . . must
seek formal ‘admission’ before they return to the United
States from abroad.”).
Our agreement with the BIA is further bolstered by the
statutory language itself, which reflects that “seeking
admission” under § 101(a)(13)(C)(v) does not mean or refer
to “adjustment of status.” Under the INA, “[t]he terms
‘admission’ and ‘admitted’ mean, 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) (emphasis added). The words
“entry” and “into” plainly indicate that “admission” involves
physical entrance into the country, which is inapposite to
adjustment of status in removal proceedings, a procedure that
is structured to take place entirely within the United States.
Nonetheless, Fernandez Taveras urges that despite the
statutory definition of “admission” under § 101(a)(13)(C),
“entry” must be understood either as physically crossing a
border or figuratively entering the United States. However,
no case cited by Fernandez Taveras in support identifies the
two procedures—admission and adjustment of status—to be
one and the same. Rather, the relevant case law indicates that
an alien can achieve the same result—lawful permanent
resident status—by either seeking adjustment of status or
admission, but does not suggest that the procedures are
interchangeable. See Matter of Alarcon, 20 I. & N. Dec. 557,
562 (BIA 1992) (“As he is seeking to adjust his status to that
of a lawful permanent resident, the respondent in this case is
assimilated to the position of an applicant for entry into the
United States.” (emphasis added)); see also Matter of Rosas-
20
Ramirez, 22 I. & N. Dec. 616, 619 (BIA 1999) (“Our
determination that aliens ‘lawfully admitted for permanent
residence’ through the adjustment process are considered to
have accomplished an ‘admission’ to the United States is
supported by the language of the adjustment provisions
themselves.” (emphasis added)).10
Accordingly, we adopt the BIA’s view that
§ 101(a)(13)(C)(v) does not apply to an applicant for
adjustment of status in a removal proceeding, and thus has no
bearing on our conclusions about the scope of § 240A(a)
relief. A grant of § 240A(a) relief only cancels removal in a
removal proceeding for an inadmissible or deportable alien,
and a conviction serving as a basis for inadmissibility or
deportability in that earlier proceeding may constitute a basis
for ineligibility for adjustment of status and § 212(h) waiver
in a subsequent removal proceeding. As such, we agree with
the BIA that Fernandez Taveras’s 1999 drug conviction—
notwithstanding that it was charged as the basis for the prior
removal proceeding in which Fernandez Taveras received a
§ 240A(a) waiver—may, and does, make him ineligible for
relief from removal. His conviction is grounds for
inadmissibility under INA § 212(a)(A)(i)(II) and ineligibility
for a § 240A(a) waiver of inadmissibility. Because
10
Contrary to Fernandez Taveras’s claim otherwise, we do not
read Hanif v. Attorney General, 694 F.3d 479 (3d Cir. 2012),
which refers to “‘admission’ both as “an event or action” and
as the “physical event of entering the country,” as suggesting
that an adjustment of status is “an event” that constitutes an
admission. Id. at 485. Rather, Hanif’s treatment of these
concepts is consistent with the notion that admission under
§ 101(a)(13)(A) pertains to seeking physical entry at a border.
Id.
21
Fernandez Taveras is inadmissible, he cannot meet the
prerequisites for adjustment of status. Accordingly, we will
deny the petition for review.
22