Martin Leiba v. Eric Holder, Jr. , 699 F.3d 346 ( 2012 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MARTIN MENDOZA LEIBA, 
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney
General,  No. 11-1845
Respondent.
AMERICAN IMMIGRATION COUNCIL,
Amicus Supporting Petitioner.

On Petition for Review of an Order
of the Board of Immigration Appeals.
Argued: September 20, 2012
Decided: November 9, 2012
Before TRAXLER, Chief Judge, DAVIS, Circuit Judge, and
Max O. COGBURN, Jr., United States District Judge
for the Western District of North Carolina,
sitting by designation.
Petition granted by published opinion. Chief Judge Traxler
wrote the opinion, in which Judge Davis and Judge Cogburn
joined.
2 LEIBA v. HOLDER
COUNSEL
ARGUED: Xavier F. Racine, CALDERON, RACINE &
DERWIN, PLC, Arlington, Virginia, for Petitioner. Benjamin
Winograd, AMERICAN IMMIGRATION COUNCIL, Wash-
ington, D.C., for Amicus Supporting Petitioner. Sheri Robyn
Glaser, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent. ON BRIEF: Tony West,
Assistant Attorney General, Anthony P. Nicastro, Senior Liti-
gation Counsel, UNITED STATES DEPARTMENT OF JUS-
TICE, Washington, D.C., for Respondent. Mary Kenney,
AMERICAN IMMIGRATION COUNCIL, Washington,
D.C., for Amicus Supporting Petitioner.
OPINION
TRAXLER, Chief Judge:
Martin Mendoza Leiba ("Mendoza") petitions for review of
a decision of the Board of Immigration Appeals ("the Board")
affirming a decision of an immigration judge ("IJ") granting
a motion by the Department of Homeland Security ("DHS")
to pretermit Mendoza’s applications for adjustment of immi-
gration status and for a waiver pursuant to Immigration and
Nationality Act ("INA") § 212(h). We grant Mendoza’s peti-
tion.
I.
Mendoza is a native and citizen of El Salvador who entered
the United States illegally. He married in 1994, and he and his
wife now have five children. Mendoza adjusted his status to
that of lawful permanent resident ("LPR") in 1995 through an
employment-based immigration petition, and his wife became
a naturalized U.S. citizen in 2001.
LEIBA v. HOLDER 3
In 2008, Mendoza was convicted in the Circuit Court of
Loudoun County, Virginia, of receiving stolen property, see
Va. Code § 18.2-108, and he received a 36-month suspended
sentence. DHS subsequently commenced removal proceed-
ings against Mendoza in 2010 by filing a Notice to Appear
("NTA") with the Executive Office of Immigration Review.
The NTA charged Mendoza with removability under INA §
237(a)(2)(A)(iii), see 8 U.S.C. § 1227(a)(2)(A)(iii), as an
alien who, "any time after admission," was convicted of an
aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(G),
i.e., which includes theft offenses for which the term of
imprisonment was at least one year. Through counsel, Men-
doza admitted the NTA’s factual allegations but denied
removability as charged and indicated he would apply for
adjustment of status and a waiver under INA § 212(h). See 8
U.S.C. § 1182(h). DHS subsequently moved to pretermit
Mendoza’s application, arguing that his conviction rendered
him ineligible for a § 212(h) waiver.
The IJ granted DHS’s motion, ruling that an alien convicted
of an aggravated felony after obtaining LPR status is ineligi-
ble for a § 212(h) waiver. The IJ therefore ordered that Men-
doza be removed to El Salvador. Mendoza appealed to the
Board, which affirmed the decision and dismissed the appeal.
Mendoza now petitions for review of the Board’s decision.
II.
Mendoza argues that the Board erred in finding him barred
under § 212(h) from obtaining a waiver of inadmissibility. We
agree.
We review de novo the Board’s legal conclusions, includ-
ing those regarding statutory construction. See Li Fang Lin v.
Mukasey, 517 F.3d 685, 691-92 (4th Cir. 2008). We also grant
appropriate deference to the Board’s interpretation of the INA
under the two-step framework set out in Chevron U.S.A. Inc.
v. NRDC, Inc., 467 U.S. 837, 842-44 (1984). Under that
4 LEIBA v. HOLDER
framework, we first consider "whether Congress has directly
spoken to the precise question at issue." Id. at 842. If a statute
is unambiguous concerning the question presented, then "that
is the end of the matter; for the court, as well as the agency,
must give effect to the unambiguously expressed intent of
Congress." Id. at 842-43; see Saintha v. Mukasey, 516 F.3d
243, 251 (4th Cir. 2008). On the other hand, if we conclude
that "Congress has not directly addressed the precise question
at issue, . . . the question for the court is whether the agency’s
answer is based on a permissible construction of the statute."
Chevron U.S.A. Inc., 467 U.S. at 843.
The statutory provision at the center of this case, § 212(h)
of the INA, grants the Attorney General the discretion to
excuse the commission of certain crimes or other misconduct
that would otherwise preclude noncitizens from entering or
remaining in the United States. As it applies to Mendoza,
§ 212(h) allows the Attorney General to waive an alien’s
inadmissibility that is based on the alien’s conviction for an
aggravated felony if the "denial of admission would result in
extreme hardship to the United States citizen or lawfully resi-
dent spouse, parent, son, or daughter of such alien." 8 U.S.C.
§ 1182(h)(1)(B).1
Before 1996, the only aliens categorically barred from
receiving § 212(h) waivers were those who had been con-
victed of committing, or attempting to or conspiring to com-
mit, "murder or criminal acts involving torture." Immigration
Act of 1990, Pub. L. No. 101-649, § 601(d)(4), 104 Stat.
4978, 5076-77. However, with the enactment of the Illegal
Immigration Reform and Immigrant Responsibility Act of
1996 ("IIRIRA"), Congress created a new category of aliens
ineligible for the waiver. New language in § 212(h) provided,
in pertinent part, that
1
Such waivers are available not only to those seeking to enter the United
States from abroad, but also to those aliens already in the United States
who are facing removal and who are eligible to avoid removal. See Braca-
montes v. Holder, 675 F.3d 380, 385 n.3 (4th Cir. 2012).
LEIBA v. HOLDER 5
No waiver shall be granted under this subsection in
the case of an alien who has previously been admit-
ted 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.
Pub. L. No. 104-208, Div. C, § 348, 110 Stat. 3009 (emphasis
added), codified at 8 U.S.C. § 1182(h).2 The IIRIRA also pro-
2
Section 212(h), in its entirety, provides:
The Attorney General may, in his discretion, waive the appli-
cation of subparagraphs (A)(i)(I), (B), (D), and (E) of subsection
(a)(2) of this section and subparagraph (A)(i)(II) of such subsec-
tion insofar as it relates to a single offense of simple possession
of 30 grams or less of marijuana if—
(1)(A) in the case of any immigrant it is established to the sat-
isfaction of the Attorney General that—
(i) the alien is inadmissible only under subparagraph (D)(i) or
(D)(ii) of such subsection or the activities for which the alien is
inadmissible occurred more than 15 years before the date of the
alien’s application for a visa, admission, or adjustment of status,
(ii) the admission to the United States of such alien would not
be contrary to the national welfare, safety, or security of the
United States, and
(iii) the alien has been rehabilitated; or
(B) in the case of an immigrant who is the spouse, parent, son,
or daughter of a citizen of the United States or an alien lawfully
admitted for permanent residence if it is established to the satis-
faction of the Attorney General that the alien’s denial of admis-
sion would result in extreme hardship to the United States citizen
or lawfully resident spouse, parent, son, or daughter of such
alien; or
(C) the alien is a VAWA self-petitioner; and
6 LEIBA v. HOLDER
vided statutory definitions for "admission" and "admitted,"
which are defined as "with respect to an alien, the lawful
entry of the alien into the United States after inspection and
authorization by an immigration officer." Pub. L. No. 104-
208, Div. C, § 301(a), 110 Stat. 3009 (emphasis added), codi-
fied at 8 U.S.C. § 1101(a)(13)(A). On the other hand, the INA
defines the term "lawfully admitted for permanent residence"
as "the status of having been lawfully accorded the privilege
of residing permanently in the United States as an immi-
grant." 8 U.S.C. § 1101(a)(20).
In Aremu v. Department of Homeland Security, 450 F.3d
578 (4th Cir. 2006), we construed the definition of "admis-
sion" and "admitted" in a context slightly different than that
before us here. In that case, the alien, Shanu, had been admit-
ted to the United States on a nonimmigrant visa for pleasure
on a six-month visa in 1989. See id. at 579. He remained in
the country illegally when his visa expired and was able to
(2) the Attorney General, in his discretion, and pursuant to
such terms, conditions and procedures as he may by regulations
prescribe, has consented to the alien’s applying or reapplying for
a visa, for admission to the United States, or adjustment of status.
No waiver shall be provided under this subsection in the case of
an alien who has been convicted of (or who has admitted com-
mitting acts that constitute) murder or criminal acts involving tor-
ture, or an attempt or conspiracy to commit murder or a criminal
act involving torture. No waiver shall be granted under this sub-
section 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 law-
fully 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. No court
shall have jurisdiction to review a decision of the Attorney Gen-
eral to grant or deny a waiver under this subsection.
8 U.S.C. § 1182(h).
LEIBA v. HOLDER 7
adjust to LPR status in 1996. See id. In 1998, however, he was
convicted of various fraud offenses. See id. On the basis of
these convictions, he was charged with removability under 8
U.S.C. § 1227(a)(2)(A)(i), which provides that
Any alien who —
(I) is convicted of a crime involving moral turpi-
tude committed within five years (or 10 years in the
case of an alien provided lawful permanent resident
status under section 1255(j) of this title) after the
date of admission, and
(II) is convicted of a crime for which a sentence
of one year or longer may be imposed,
is deportable.
8 U.S.C. § 1227(a)(2)(A)(i) (emphasis added); Aremu, 450
F.3d at 579-80. The IJ concluded that "the date of admission"
in this context included not only the date that Shanu was orig-
inally admitted to this country but also the date of his adjust-
ment to LPR status, and therefore ordered Shanu removed.
See Aremu, 450 F.3d at 580. The Board affirmed on appeal,
and Shanu filed a petition for review in our court. See id.We granted Shanu’s petition under the first prong of Chev-
ron review, concluding that in Shanu’s case, "the date of
admission" unambiguously referred to the date he entered the
country, not the date that he adjusted his status. See id. at 582-
83. We reasoned that an "[a]djustment of status is a method
of acquiring status as a permanent resident that is only avail-
able to those already within the United States." Id. at 581.
Because "admission," as Congress defined the term was a
type of entry into this country, we concluded that an adjust-
ment of status was not included. See id. In so doing, however,
we "express[ed] no opinion" whether, in a case in which strict
adherence to the definition of "admission" would leave an
8 LEIBA v. HOLDER
alien without any "date of admission," we would use the date
of a status adjustment as a proxy for the date of admission in
order to avoid producing an absurd result. See id. at 583.
In Bracamontes v. Holder, 675 F.3d 380 (4th Cir. 2012), a
decision issued after the Board issued its decision in the pres-
ent case, we had occasion to interpret the very same § 212(h)
language at issue here. As such, that case bears close exami-
nation. Bracamontes was a native of Mexico whose mother
brought him to the United States illegally when he was less
than two years old. See id. at 382. He and his mother were
granted temporary resident status in 1987, which was adjusted
to LPR status in 1990. See id. After 1976, Bracamontes lived
continuously in the United States except for one week in 1988
when he visited Mexico. See id. In 1999, Bracamontes pled
guilty in Virginia state court to an aggravated felony. See id.
at 383. The issue in Bracamontes was whether that aggravated
felony rendered Bracamontes ineligible under § 212(h) for a
waiver of inadmissibility. An IJ found that it did and the
Board agreed and dismissed his appeal. See id. Bracamontes
then petitioned for review of the Board’s decision, and we
granted his petition. See id. at 383, 389.
Applying the first prong of Chevron analysis, we concluded
that the § 212(h) waiver bar unambiguously did not apply to
Bracamontes. We reasoned that the defined terms "admitted"
and "lawfully admitted for permanent residence" both sepa-
rately appeared in § 212(h) and that they should be given the
meaning that Congress specifically designated for them. See
id. at 385. Replacing the terms in the statute with their respec-
tive definitions, we concluded that the language at issue
meant:
No waiver shall be granted under this subsection in
the case of an alien who has previously [lawfully
entered into the United States after inspection and
authorization by an immigration officer] as an alien
[with the status of having been lawfully accorded the
LEIBA v. HOLDER 9
privilege of residing permanently in the United
States as an immigrant] if . . . since the date of such
admission the alien has been convicted of an aggra-
vated felony.
See id. at 385-86. Because Bracamontes had never lawfully
entered the United States after inspection with LPR status —
as he achieved that status only after his last (and only) entry
into this country with inspection — we reasoned that the
§ 212(h) bar plainly did not apply to him. See id. at 385.
Although the government urged us to treat Bracamontes as
having been "admitted" by virtue of his obtaining of his 1990
status adjustment for purposes of § 212(h), we concluded that
doing so would require us to ignore the plain meaning of Con-
gress’s definition of "admitted," which "[c]learly" does not
"include[ ] an adjustment of status." Id. We noted further that
the government’s interpretation would make surplusage out of
the words "who has previously been admitted to the United
States." Id. at 386. Recognizing that we were obliged to give
the statute its plain meaning, we rejected the Board’s interpre-
tation. See id. at 386-87.
We noted that the government argued that our reading of
§ 212(h) would produce an absurd result, namely that aliens
who adjust to LPR status after entering the country would
receive more favorable treatment than those who entered with
LPR status. See id. at 388; see also Sigmon Coal Co. v. Apfel,
226 F.3d 291, 304 (4th Cir. 2000) ("If a literal reading of a
statute produces an outcome . . . that can truly be character-
ized as absurd, i.e., that is so gross as to shock the general
moral or common sense, then we can look beyond an unam-
biguous statute and consult legislative history to divine its
meaning." (internal citations and quotation marks omitted)),
aff’d sub nom. Barnhart v. Sigmon Coal Co., 534 U.S. 438(2002). We squarely rejected that argument, however, con-
cluding that Congress in fact "may have had rational reasons
for making such a distinction." Bracamontes, 675 F.3d at 388.
In particular, we noted that Congress may well have been
10 LEIBA v. HOLDER
simply taking an incremental approach regarding the achieve-
ment of the goal of quickly removing aliens who have com-
mitted serious crimes, or it may rationally have concluded that
aliens who adjust post-entry are more deserving of being eli-
gible for a waiver because many of them entered this country
as minors, grew up here, developed strong ties here, and may
well have more citizen relatives who would be hurt by their
removal. See id. at 389.
We emphasized that our interpretation of § 212(h) was in
line with similar rulings from other circuits. See id. at 387.
We also noted that our interpretation did not conflict with the
Board’s decision in Matter of Koljenovic, 25 I. & N. Dec. 219(BIA 2010) — which the Board relied on in the present case
for its conclusion that Mendoza was "admitted to the United
States as an alien lawfully admitted for permanent residence."3
8 U.S.C. § 1182(h). We determined that Koljenovic was dis-
tinguishable since, in contrast to Bracamontes, who had once
been admitted to this country when he returned from a week-
long trip to Mexico, Koljenovic "effectively had no admission
at all unless his adjustment of status was used as the relevant
date of admission." Bracamontes, 675 F.3d at 388. Based on
3
In Matter of Koljenovic, the Board noted that it had consistently con-
strued status adjustments as "admissions." See 25 I. & N. Dec. 219, 221
(BIA 2010). The Board reasoned that under a contrary determination,
"aliens who entered without inspection and later adjusted their status
would never have been ‘admitted’ for permanent residence and would
therefore be ineligible for relief from removal that includes an ‘admission’
requirement." Id. The Board further found that the contrary interpretation
would also be at odds with INA § 245(b), which requires the Attorney
General to "record the alien’s lawful admission for permanent residence
as of the date" of the grant of the status adjustment. See id. The Board also
reasoned that Congress would not have intended "for an alien who entered
the United States illegally and was afforded the privilege of adjustment of
status to be able to avoid the restrictions contained in section 212(h) of the
Act, when those very restrictions would apply if the alien had gone
through consular processing to be admitted as a lawful permanent resi-
dent." Id. at 222-23. And, the Board concluded that legislative history sup-
ported its result. See id. at 222.
LEIBA v. HOLDER 11
this difference, we noted that although the Board in
Koljenovic "arguably needed to fill in a ‘gap’ in the language
of section 212(h) because it was entirely silent concerning
how to treat an alien with no lawful entry at all," no such gap
existed in Bracamontes’s case. Id. (emphasis in original).
The government contends that this language in Bracamon-
tes shows that Congress left a gap to fill in § 212(h), and thus
that under Chevron’s second step, we should defer to the
Board’s reasonable decision as to how to fill the gap. The
government maintains that "in section 212(h), Congress did
not address the situation of an alien with no lawful entry
whatsoever, as the language in section 212(h) refers only to
an alien with a previous admission, i.e., an alien who has law-
fully entered the United States pursuant to INA
§ 101(a)(13)(A)." Supp. brief of Respondent at 5-6.
In support of its position, the government argues that this
court "acknowledged" the existence of this gap in Bracamon-
tes. Supp. brief of Respondent at 5, 6. We disagree. Our dis-
cussion of Koljenovic in Bracamontes explained only that the
factual circumstance on which the result in Koljenovic was
based was not present in Bracamontes. We commented that
the Board’s decision in Koljenovic was "arguably" correct,
but we certainly did not definitively resolve the proper appli-
cation of the law to a factual scenario not before us. Braca-
montes, 675 F.3d at 388. As such, the language represents
mere non-binding dicta, and does not answer the question of
whether Congress left a gap to fill in § 212(h) as to aliens who
have never entered the country legally.
Regarding that question, we conclude that although we did
not directly decide whether Congress left such a gap, our
analysis in Bracamontes shows that no such gap exists. In
Bracamontes, we reasoned that the term "admitted" in
§ 212(h) "[c]learly [does not] include[ ] an adjustment of sta-
tus." Id. at 385. Thus, we held:
12 LEIBA v. HOLDER
As such, an alien with [LPR] status who has entered
the United States legally, following inspection by an
immigration officer, and is subsequently convicted
of an aggravated felony, [has not "been admitted to
the United States as an alien lawfully admitted for
permanent residence" and thus] is statutorily ineligi-
ble for a section 212(h) waiver. With respect to other
aliens, however, the Attorney General retains the
discretion to grant a waiver . . . .
Id. at 386 (emphasis added). With Congress having spoken
directly to the issue before us, we must enforce § 212(h)’s
plain meaning.4 We note that since Bracamontes issued, the
Board has reached the same conclusion that we do today
4
Prior to our issuance of Bracamontes, the government argued in this
appeal that under Mendoza’s interpretation, "Congress’ employment of the
phrase ‘alien lawfully admitted for permanent residen[ce]’ is, by in large,
a misnomer" if aliens can achieve that status without being "admitted."
Brief for Respondent at 19. Bracamontes forecloses our consideration of
that argument, but we note nonetheless that the Supreme Court rejected a
similar argument in Burgess v. United States, 553 U.S. 124 (2008) (hold-
ing in the context of the Controlled Substances Act that although "felony"
was a defined term, another defined term, "felony drug offense," included
some offenses that did not satisfy the statutory definition of a "felony").
The government further maintains that Mendoza’s interpretation would
not make sense within § 212(h) itself because under § 212(h), the Attorney
General may waive inadmissibility "in the case of an immigrant who is the
spouse, parent, son, or daughter of a citizen of the United States or an
alien lawfully admitted for permanent residence if it is established to the
satisfaction of the Attorney General that the alien’s denial of admission
would result in extreme hardship to the United States citizen or lawfully
resident spouse, parent, son, or daughter of such alien." 8 U.S.C.
§ 1182(h)(1)(B) (emphasis added). The government argues that if an
adjustment of status is not an admission, then an alien like Mendoza could
not obtain a waiver under § 212(h) because "any prospective hardship
befalling their family members would no longer be attributable to a denial
or refusal of ‘admission.’" Matter of Alyazji, 25 I. & N. Dec. 397, 403
(BIA 2011). This argument is also foreclosed by Bracamontes, which, like
the present case, also concerned an alien seeking a § 212(h) waiver based
on family hardship.
LEIBA v. HOLDER 13
regarding the consequences of that decision, indicating that in
the Fourth Circuit, after Bracamontes, the § 212(h) aggra-
vated felony bar unambiguously does not apply to an alien
who never entered the United States legally. See Matter of
Rodriguez, 25 I. & N. Dec. 784, 788 (BIA 2012).
The government argues that accepting Mendoza’s interpre-
tation would produce an absurd result in that there is no ratio-
nal basis for favoring aliens like him, who entered the country
illegally and only later obtained their LPR status through
adjustment, over those aliens who entered the country legally.
As we have explained, however, that is an argument we spe-
cifically rejected in deciding Bracamontes. See id. at 388-89.
We are without authority to revisit it here.5
The government further contends that adhering to Con-
gress’s strict definition of "admitted" in the context of
§ 212(h) with regard to an alien like Mendoza, who has never
legally entered this country but who has adjusted to LPR sta-
tus, would lead to other absurd results. First, the government
contends that such an alien would never be eligible to apply
for naturalization despite possessing LPR status because INA
§ 318 provides, as is relevant here, that "no person shall be
naturalized unless he has been lawfully admitted to the United
States for permanent residence in accordance with all applica-
ble provisions of this chapter." 8 U.S.C. § 1429 (emphasis
5
The government also argues that its construction "provides the most
reasonable reading of section 212(h)" since it would prevent § 212(h) from
possibly violating the Equal Protection Clause by arbitrarily treating aliens
who obtained LPR status after illegally entering the country differently
from those who entered the country with LPR status. Brief for Respondent
at 32 (citing Yeung v. INS, 76 F.3d 337 (11th Cir. 1996)). However, our
conclusion in Bracamontes that "Congress may have had rational reasons
for making such a distinction" certainly saps this argument of any signifi-
cant persuasive force. Bracamontes, 675 F.3d at 388; see also id. at 388
n.5 (noting that "courts have consistently overruled" "equal protection
challenges to the distinction drawn under section 212(h) between illegal
immigrants and those admitted as lawful permanent residents").
14 LEIBA v. HOLDER
added). We do not see why our decision today would affect
§ 318. As we explained in Bracamontes, the terms "lawfully
admitted to the United States for permanent residence" and
"admitted" have separate definitions. Our decision today,
which turns primarily on the meaning of "admitted," should
have no bearing on the meaning of "lawfully admitted to the
United States for permanent residence" in § 318.
The government next contends that literally applying Con-
gress’s definition of "admitted" in cases of aliens who have
never lawfully entered this country would produce the absurd
result that such aliens would be ineligible to apply for cancel-
lation of removal under INA § 240A. See 8 U.S.C. § 1229b.
That section provides that the Attorney General may cancel
removal of an inadmissible alien if, as is relevant here, he:
(1) has been an alien lawfully admitted for perma-
nent 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 fel-
ony.
8 U.S.C. § 1229b(a) (emphasis added). The premise of the
government’s argument that it would be absurd for an alien
such as Mendoza to be eligible for a possible § 212(h) waiver
but to be ineligible for cancellation of removal is the govern-
ment’s view that Congress intended to create congruity
between § 212(h) and § 240A. The distinctions between the
language used in § 240A and that used in § 212(h) clearly
show, however, that Congress did not intend such congruity.
First, § 240A(a)’s requirement that the alien have had LPR
status for at least five years is nowhere to be found in
§ 212(h). Second, unlike in § 212(h), Congress in § 240A
decided not to use the term "admitted" along with "lawfully
LEIBA v. HOLDER 15
admitted for permanent residence." "[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 pre-
sumed that Congress acts intentionally and purposely in the
disparate inclusion or exclusion." Russello v. United States,
464 U.S. 16, 23 (1983) (alteration in original and internal
quotation marks omitted). We certainly see no absurdity in
this disparity.
The government next maintains that applying Bracamontes
to an alien like Mendoza, who never entered this country
legally but who has adjusted to LPR status, would produce the
absurd result that he would be left in the position of never
being removable under INA § 237(a)(2)(A)(iii) as an alien
who was convicted of an aggravated felony "any time after
admission." 8 U.S.C. § 1227(a)(2)(A)(iii). However, assum-
ing arguendo that such a result would be absurd, our decision
today does not produce that result and we offer no opinion
concerning whether Mendoza could be removed under that
subsection. We recognize that for aliens such as Mendoza it
is arguable that the date of their status adjustment should be
used as a proxy for their date of admission to avoid an absurd
result in interpreting § 237(a)(2)(A)(iii). That recognition,
however, does not require us to refrain from enforcing the
plain meaning of § 212(h) when the result produced by our
application of § 212(h) is not absurd. See Aremu, 450 F.3d at
583 (adhering to 8 U.S.C. § 1101(a)(13)(A)’s definition of
"admitted" when interpreting a different statute while
acknowledging the possibility that adhering to the definition
when interpreting other statutes could produce absurd results);
Stone v. Instrumentation Lab. Co., 591 F.3d 239, 249 n.10
(4th Cir. 2009) (similar); see also Lockhart v. United States,
546 U.S. 142, 146 (2005) ("The 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." (internal quotation marks omitted)).
16 LEIBA v. HOLDER
Congress has not used the terms "admitted" and "lawfully
admitted to the United States for permanent residence"
together often in the INA and, indeed, the phrase "admitted to
the United States as an alien lawfully admitted for permanent
residence" which appears in § 212(h), appears nowhere else in
the Code. The fact that Congress decided to use both terms
together is a very strong indication that it intended that each
term would serve a distinct purpose. Whether we would
refrain from enforcing the plain meaning of "admitted" or
"admission" in a different statutory context wherein Congress
used different language and where adhering to the strict defi-
nition of "admitted" or "admission" would produce absurd
results is a question we simply are not presented with in this
appeal.6
The government also maintains that applying Mendoza’s
interpretation produces the absurd result that even if the
Attorney General exercised his discretion to grant Mendoza a
§ 212(h) waiver, Mendoza would be susceptible to removal
under INA § 212(a)(6)(A)(i) as "[a]n alien present in the
United States without being admitted or paroled."7 8 U.S.C.
6
The Board’s decision in Matter of Espinosa Guillot, 25 I. & N. Dec.
653 (BIA 2011), supports the conclusion that the government’s claimed
absurd result would not necessarily follow from our adoption of Mendo-
za’s interpretation. Like Mendoza, the alien in that case was an LPR who
had never been "admitted" as that term is defined in 8 U.S.C.
§ 1101(a)(1)(A). After the alien was convicted of narcotics trafficking, the
government commenced removal proceedings on the basis that the alien
had been convicted of an aggravated felony and controlled substance vio-
lation "after admission." See, e.g., 8 U.S.C. § 1227(a)(2)(A)(iii). Follow-
ing an Eleventh Circuit decision very similar to the decision we issue
today, Lanier v. Attorney General, 631 F.3d 1363 (11th Cir. 2011), an IJ
determined that the alien’s status adjustment did not constitute an "admis-
sion" to the United States. See 25 I. & N. Dec. at 653-54. The Board
reversed, however. In so doing, it read Lanier narrowly, noting that Lanier
relied, as we do here, "on the particular language of section 212(h)" and
stating that the "holding should not be read to extend to other provisions
of the [INA]." Id. at 655.
7
The government also contends that we should reject Mendoza’s pro-
posed interpretation in the case of an alien who has never lawfully entered
this country because
LEIBA v. HOLDER 17
§ 1182(a)(6)(A)(i). However, whether Mendoza is removable
under § 212(a)(6)(A)(i) is a question not before us. As we
have explained, we can determine at the appropriate time how
§ 212(a)(6)(A)(i) should be interpreted.
Despite the existence of some obvious awkwardness in
applying Congress’s definition of "admitted" and "admission"
in other contexts, no absurdity is produced in doing so on the
facts before us and Congress’s intention regarding the mean-
ing of the language we interpret today is plain. It is thus not
surprising that each circuit to construe § 212(h) in the context
we address today has concluded that obtaining LPR status
unambiguously does not constitute being "admitted" in the
context of § 212(h). See Hanif v. Attorney Gen., No. 11-2643,
2012 WL 4044727, at *4-*7 (3d Cir. Sept. 14, 2012); Lanier
v. Attorney Gen., 631 F.3d 1363, 1366-67 (11th Cir. 2011);
Hing Sum v. Holder, 602 F.3d 1092, 1095-1101 (9th Cir.
2010); Martinez v. Mukasey, 519 F.3d 532, 544 (5th Cir.
2008). Indeed, in Hanif and Lanier, the Third and Seventh
Circuits adhered to Congress’s strict definition of "admitted"
on facts indistinguishable from those before us, as those
cases, like Mendoza’s, involved aliens who had never entered
the country legally. How "admitted" and "admission" should
be interpreted in other contexts is a question for another day.
it is unclear how [a § 212(h) waiver] would benefit this alien if
he does not achieve an admission upon adjustment of status. If
this alien does not achieve an admission upon adjustment, then
this alien remains deportable for an act committed prior to the
adjustment.
Supp. brief for Respondent at 9. We do not understand the government’s
argument. To the extent that it maintains that Mendoza himself would con-
tinue to be removable for his offense even if the Attorney General granted
a § 212(h) waiver, that is simply incorrect. To the extent that it maintains
that some other alien might suffer this fate, we do not understand how that
would be the case.
18 LEIBA v. HOLDER
III.
In sum, for all the reasons we have discussed, we hold that
the § 212(h) waiver bar unambiguously does not apply to
Mendoza, and we grant his petition for review.
PETITION GRANTED