Ronaldo Marques v. Loretta Lynch , 834 F.3d 549 ( 2016 )

Case: 14-60065 Document: 00513645159 Page: 1 Date Filed: 08/19/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 14-60065
Fifth Circuit
FILED
August 19, 2016
RONALDO DE LIMA MARQUES, Lyle W. Cayce
Clerk
Petitioner
v.
LORETTA LYNCH, U. S. ATTORNEY GENERAL,
Respondent
Petitions for Review of an Order of the
Board of Immigration Appeals
Before HIGGINBOTHAM, SOUTHWICK, and HIGGINSON, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
Ronaldo De Lima Marques lawfully entered the United States in August
2001 on a nonimmigrant visa. He married a United States citizen in 2005. On
the basis of his marriage, Marques adjusted his status to that of a legal
permanent resident. Marques’s marriage was a sham, though. Accordingly,
the Board of Immigration Appeals (“BIA”) held Marques removable. We
GRANT Marques’s petition for review of the BIA’s order of removal and
VACATE the BIA’s judgment. We DENY as MOOT Marques’s petition for
review of the BIA’s decision denying a motion to reopen.
Case: 14-60065 Document: 00513645159 Page: 2 Date Filed: 08/19/2016
No. 14-60065
FACTUAL AND PROCEDURAL BACKGROUND
Ronaldo De Lima Marques is a native and citizen of Brazil who was first
admitted into the United States on August 27, 2001. Marques entered as a
nonimmigrant B-2 visitor with authorization to remain in the United States
for six months. He subsequently enrolled in college and changed his status to
that of a nonimmigrant student with authorization to remain in the United
States for the duration of his studies but no later than December 30, 2005.
In August 2005, Marques married a United States citizen who was said
to be named Olga Jean Flores. Her actual name was Diana Hernandez, and
that is what we call her here. The record shows Marques and Hernandez were
married on August 14, 2005, by a justice of the peace in Plano, Texas.
Hernandez also married another man that day, though not in a dual ceremony.
A different justice of the peace in nearby Dallas performed the other wedding.
In late 2005, Hernandez filed an I-130 Petition for Alien Relative on behalf of
Marques. Marques attached a G-325 Biographic Information Sheet indicating
he had no prior spouses. Along with the I-130 Petition, Marques
simultaneously filed an I-485 application for adjustment of status to become a
legal permanent resident (“LPR”) based on his marriage to a citizen. The
application was approved on September 9, 2006.
Hernandez’s mother operated an extensive marriage-fraud scheme that
was uncovered by the Department of Homeland Security (“DHS”) through an
investigation titled “Operation Phony Love.” The scheme connected foreign
nationals seeking permanent residency in the United States with relatives of
Hernandez’s mother. DHS found two checks written from Marques to
Hernandez’s mother, one for $500 and the other for $2,000. DHS also learned
Hernandez had married at least five spouses in addition to Marques. Further,
DHS discovered Marques had been married to Fabiana Galvao since March
2001. Galvao, like Marques, was not a U.S. citizen. She also paid to marry
2
Case: 14-60065 Document: 00513645159 Page: 3 Date Filed: 08/19/2016
No. 14-60065
one of Hernandez’s relatives in order to support an application for her lawful
permanent resident status.
In 2008, Hernandez pled guilty and was convicted of conspiracy to
commit visa fraud. During an interview with DHS investigators, Hernandez
admitted she had entered into a fraudulent marriage with Marques. Around
the same time, Marques divorced both Galvao (in February 2008) and
Hernandez (in August 2008). Marques claims he has since married a different
U.S. citizen.
On April 5, 2010, DHS issued a Notice to Appear charging that Marques
was subject to removal as an alien who, at the time he adjusted his status, was
inadmissible under 8 U.S.C. § 1227(a)(1)(A). The Notice identified two bases
of inadmissibility: (1) at the time Marques adjusted his status, he did not
possess a valid unexpired immigrant visa, reentry permit, or other valid entry
document, citing 8 U.S.C. § 1182(a)(7)(A)(i)(I), and (2) he adjusted his status
through marriage fraud, citing 8 U.S.C. § 1182(a)(6)(C)(i). Marques denied
both charges at a July 2011 initial appearance before an Immigration Judge
(“IJ”). One month later, DHS withdrew the charge of marriage fraud. 1 The
claimed fraud nonetheless remained central to DHS’s argument that Marques
did not possess a valid immigration document.
On January 4, 2012, the IJ found Marques removable because “he was
not in possession of a valid unexpired immigrant visa” at the time he adjusted
his status. We quote the IJ’s finding to make clear that the visa is the
document, out of the various possibilities listed in the charge (e.g., immigrant
1 In a March 2014 letter to the BIA in support of the motion to reopen, Marques’s
former attorney wrote that during pretrial conferences, the Government asked whether
Marques would concede both charges and then seek relief from removability. After Marques
said he would not concede, the charge relying on marriage fraud was withdrawn. At oral
argument, the Government stated that because Marques would not concede the grounds for
removal, it dropped the charge whose proof would be more involved.
3
Case: 14-60065 Document: 00513645159 Page: 4 Date Filed: 08/19/2016
No. 14-60065
visa, reentry permit, other valid entry document), that the IJ says was needed.
Specifically, the IJ found that the I-130 Petition filed on Marques’s behalf by
his ostensible wife was invalid because it was based on a fraudulent marriage,
and thus “[a]bsent a valid I-130 petition, [Marques] was not eligible for the visa
that allowed him to adjust his status.” Marques filed a timely notice of appeal.
On December 31, 2013, the BIA affirmed the IJ’s decision. Marques filed
a timely motion with the BIA to reopen, which was denied on August 7, 2014.
On August 13, 2014, Marques filed a timely petition for review with this court.
DISCUSSION
On petition for review, we generally examine only the BIA decision and
not that of the IJ. Majd v. Gonzales, 446 F.3d 590, 594 (5th Cir. 2006). There
is an exception which we have articulated in different ways. Perhaps one
extreme is to say we will review the IJ’s decision if “the BIA summarily affirms
the IJ’s decision without opinion . . . .” Id. A lighter touch in phrasing is that
we allow review of both if “the IJ’s ruling affects the BIA’s decision . . . .” Zhu
v. Gonzales, 493 F.3d 588, 593 (5th Cir. 2007). It is fair to say we will review
the IJ’s decision in both situations. Here, the BIA decision said: “We adopt and
affirm” the IJ’s decision. The BIA then gave detailed responses to each
argument. Consequently, we review only the BIA decision.
The BIA ordered Marques removed under Section 1227(a)(1)(A). It held
that Marques was inadmissible when he adjusted his status because he did not
at that time possess a “valid unexpired immigrant visa.” Marques contends
the statute the BIA relied on, Section 1182(a)(7)(A)(i)(I), is inapplicable
because it expressly applies to someone who is making an “application for
admission,” which means it should not apply to aliens like himself who are
already legally present and do not need to be admitted.
4
Case: 14-60065 Document: 00513645159 Page: 5 Date Filed: 08/19/2016
No. 14-60065
The issue is a question of law, which we review “de novo, giving
considerable deference to the BIA’s interpretation of the legislative scheme it
is entrusted to administer.” Id. at 594 (footnote and quotation marks omitted).
The Government argues Section 1182(a)(7)(A) is ambiguous and we should
defer to the BIA’s interpretation pursuant to Chevron U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984). Chevron compels a two-
part inquiry. First, we determine “whether Congress has directly spoken to
the precise question at issue. If the intent of Congress is clear, that is the end
of the matter; the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress.” Id. at 842–43. Second, if there
is a gap in the statute, “the question for the court is whether the agency’s
answer is based on a permissible construction of the statute.” Id. at 843.
We now apply these principles to the statutes relevant to this case.
I. The statutes underlying the charge against Marques
“In determining whether Congressional intent is clear (and therefore,
deference’s not being accorded the agency), we . . . look first and foremost to
the language of the statute.” Martinez v. Mukasey, 519 F.3d 532, 543 (5th Cir.
2008). “[P]lain statutory language is the most instructive and reliable
indicator of Congressional intent.” Id.In this case, two provisions of the Immigration and Nationality Act
(“INA”) are relevant. They are the only statutes cited in the charge on which
Marques was ordered removed. The first provides for removal of aliens who
are, at the time of entry or adjustment of status, inadmissible under some other
provision of the INA. The other statute is the needed substantive provision
that allegedly rendered Marques “inadmissible.” We review the general
removal statute first.
5
Case: 14-60065 Document: 00513645159 Page: 6 Date Filed: 08/19/2016
No. 14-60065
A. Section 1227(a)(1)(A)
The first relevant statute is a subpart of Section 1227. The entire statute
is captioned “Deportable aliens.” Subpart (a) consists of the following preface:
Any alien (including an alien crewman) in and admitted to the
United States shall, upon the order of the Attorney General, be
removed if the alien is within one or more of the following classes
of deportable aliens: . . . .
8 U.S.C. § 1227(a). Subsections (a)(1) through (a)(6) identify different classes
of deportable aliens. Some of the classes not relevant here are clearly bounded,
such as those guilty of certain criminal offenses, Section 1227(a)(2), or those
who have illegally voted, Section 1227(a)(6). The class of deportable aliens into
which the Government seeks to place Marques is more general:
Any alien who at the time of entry or adjustment of status was
within one or more of the classes of aliens inadmissible by the law
existing at such time is deportable.
Id. § 1227(a)(1)(A). We must look elsewhere in the INA to find why Marques
might have been inadmissible at the time he adjusted his status.
Before moving into the analysis further, we explain that the process of
“adjustment of status” is “a procedure in which certain aliens physically
present in the United States can obtain permanent resident status by
adjusting their status without leaving the United States.” RICHARD D. STEEL,
STEEL ON IMMIGRATION LAW § 7.1 (2015 ed.). More on that later.
We now review the second relevant statute. It sets out the ground of
inadmissibility that allegedly rendered Marques removable.
B. Section 1182(a)(7)
The BIA concluded Marques was inadmissible because of a statute which
makes inadmissible “immigrants” who do not have certain documents. 8
U.S.C. § 1182(a)(7)(A). As noted already, Marques was admitted as a non-
immigrant in 2001. Inadmissibility of nonimmigrants is covered in a separate
6
Case: 14-60065 Document: 00513645159 Page: 7 Date Filed: 08/19/2016
No. 14-60065
subsection. Id. § 1182(a)(7)(B). The Government relies on the immigrant
subsection because the adjustment that Marques was seeking in 2005–2006,
after he became involved in marriage fraud, was to become an immigrant.
The title of Section 1182(a)(7) is “Documentation requirements.” The
charge on which Marques was found removable cited the following subpart:
Except as otherwise specifically provided in this chapter, any
immigrant at the time of application for admission —
(I) who is not in possession of a valid unexpired immigrant
visa, reentry permit, border crossing identification card, or
other valid entry document required by this chapter, and a
valid unexpired passport, or other suitable travel document,
or document of identity and nationality if such document is
required under the regulations issued by the Attorney
General under section 1181(a) of this title . . .
...
is inadmissible.
Id. § 1182(a)(7)(A)(i)(I).
We have already mentioned that the BIA found that what Marques
needed, but did not have, was a valid unexpired immigrant visa. Section
1182(a)(7)’s document requirements are said to apply “at the time of
application for admission”; the statute does not say it also applies at the time
of adjustment of status as did Section 1227(a)(1)(A).
II. Combining the two statutes
We now merge our discussion of the two statutes. Marques must be
shown not to have had a “valid unexpired immigrant visa” “at the time of
application for admission,” a charge that relies on Section 1182(a)(7)(A)(i)(I),
and therefore, to have been inadmissible under Section 1227(a)(1)(A). Two
hurdles exist for the Government. First, the Government must convince us
that an adjustment of status requires having a valid immigrant visa. Second,
7
Case: 14-60065 Document: 00513645159 Page: 8 Date Filed: 08/19/2016
No. 14-60065
the Government must persuade that there is room in the meaning of
“application for admission” to include an adjustment of status.
A. Visas
The Government charged and the BIA held that Marques needed, but
did not have, a valid unexpired immigrant visa at the time of his adjustment
of status, thereby violating Section 1182(a)(7). In order for an adjustment of
status to occur, these statutory requirements must be satisfied:
The status of an alien who was inspected and admitted . . . may be
adjusted . . . to that of an alien lawfully admitted for permanent
residence if (1) the alien makes an application for such adjustment,
(2) the alien is eligible to receive an immigrant visa and is
admissible to the United States for permanent residence, and (3)
an immigrant visa is immediately available to him at the time his
application is filed.
8 U.S.C. § 1255(a).
None of this indicates that Marques would have actually gotten a visa.
The record indicates that Marques received a “permanent resident card,” the
formal name for a green card, but no visa is in the record. Generally an
immigrant visa is “issued by a consular officer at his office outside of the United
States to an eligible immigrant under the provisions of this chapter.” 8 U.S.C.
§ 1101(a)(16). Although it is unclear whether or when an applicant for
adjustment of status might receive a physical visa, an applicant at least is
assigned a visa number at the time an examiner approves the application. See
AUSTIN T. FRAGOMEN, JR., ET AL., IMMIGRATION PROCEDURES HANDBOOK
§ 20:35. We conclude Marques likely received a visa number on September 9,
2006. He was interviewed that day about his application for adjustment of
status; the Government states the application was approved that day.
Thus, upon the examiner’s approval, Marques likely received a visa
number on September 9. See id. If having the number is the equivalent of
8
Case: 14-60065 Document: 00513645159 Page: 9 Date Filed: 08/19/2016
No. 14-60065
having a visa, then Marques’s visa came into existence the same day his status
was adjusted, but the visa was invalid because it was acquired through the
fraud in the I-130 filed by his supposed wife. Further, if the Government is
correct that an adjustment of status is an admission into the United States —
an issue we discuss next — then Marques’s invalid visa came into existence at
about the same time as did his equivalent of an application for admission.
Perhaps BIA could be granted Chevron deference on how we should
understand Section 1182(a)(7)’s visa requirement. We need not decide,
though, whether Marques held an immigrant visa at the time he adjusted
status because of the results of the remainder of our analysis.
B. Application for admission
Even if the BIA is correct that Marques needed and did not have a valid
unexpired immigrant visa when he adjusted his status, more difficult is the
other requirement: Section 1182(a)(7) is applicable only when an alien is
making an application for admission, which the INA defines as “the
application for admission into the United States . . . .” 8 U.S.C. § 1101(a)(4).
Marques seemingly was not applying for admission. As an already admitted
nonimmigrant, he was applying for an adjustment of status. The Government
argues, though, that an adjustment of status results in a technical admission.
We and other circuit courts have heard a similar argument in another
context. We have fairly uniformly said “no.” This case offers a new context.
We discuss first whether one of the statutes involved in this case supports the
argument. Concluding it does not, we then examine the INA as a whole.
1. Ambiguity from “in and admitted” in Section 1227(a)(1)(A)
The Government argues that Section 1227(a)(1)(A) is ambiguous, so we
need to give Chevron deference to the interpretation made by the BIA. We
9
Case: 14-60065 Document: 00513645159 Page: 10 Date Filed: 08/19/2016
No. 14-60065
emphasize one part of our earlier discussion of deference. “[W]hen reviewing
an agency’s construction of a statute that it administers, a court must
determine first whether Congress has directly spoken to the question at issue.”
Orellana-Monson v. Holder, 685 F.3d 511, 517 (5th Cir. 2012). If so, we “give
effect to the unambiguously expressed intent of Congress,” and if not we “must
determine whether the agency’s answer is based on a permissible construction
of the statute.” Id. Before we can give deference, then, we must conclude after
our own textual analysis that a statute is ambiguous. Id.To show ambiguity, the Government starts with the fact Section 1227(a)
applies only to aliens who are “in and admitted” to this country. It then argues
that subpart (1)(A) — the subpart relevant in this case — provides
two ways by which an alien may be “in and admitted” — via entry
or via adjustment of status. Does the statute address only those
“admitted” in some other status who subsequently adjust status,
or does it also address those who were treated as “admitted” for
other reasons? If someone who adjusted status was required to
have some other entry to be considered “admitted” then the
additional “or of adjustment of status” language becomes
superfluous.
The Government argues that subpart (1)(A)’s reference to adjustment of status
is unnecessary unless the adjustment causes an admission. If an adjustment
is not an admission, then subpart (1)(A) would not apply unless the alien was
“in and admitted” due to some other event, such as Marques’s admission in
2001 as a nonimmigrant. Unless we accept that an adjustment causes an
admission, the argument goes, we are nullifying the reference in (1)(A) to
adjustment of status. The statute would have simply said it applied to aliens
in and admitted to the country who were inadmissible at the time of entry.
We do not see what the Government sees. First, a reminder of the
language in play from Section 1227(a)(1)(A): “Any alien [in and admitted to
the United States] who at the time of entry or adjustment of status was within
10
Case: 14-60065 Document: 00513645159 Page: 11 Date Filed: 08/19/2016
No. 14-60065
one or more of the classes of aliens inadmissible by the law existing at such
time is deportable.” The INA is saying that if a category of inadmissibility
applies at the time of an alien’s entry or adjustment of status, then that alien
who has entered or has had an adjustment of status may be deported. The
statute also countenances that the grounds of inadmissibility can change
through revisions to other sections of the INA. Further, it applies the law in
existence at entry and at adjustment. If an alien was not inadmissible at the
time of entry but later becomes inadmissible at the point of adjustment of
status, the alien is deportable. To receive deference, the Government needs
first to show us ambiguity. We find no superfluous or redundant wording in
Section 1227(a)(1)(A).
There is another issue here. The Government, as part of the
preliminaries to its argument about surplusage, said that ambiguity arises
because of the interplay between the two relevant INA provisions. Though
there was little briefing of this as a separate argument, interpretive difficulties
can arise when one INA provision cross-references others. We dealt with such
issues in two fairly recent opinions, where we had to determine “whether one
section of the INA that cross-references another necessarily adopts the entirety
of the second section — its limitations, qualifiers, or procedures.” Paz Calix v.
Lynch, 784 F.3d 1000, 1009 (5th Cir. 2015); see also Nino v. Holder, 690 F.3d
691, 697 (5th Cir. 2012). In one case we found ambiguity, Paz Calix, 784 F.3d
at 1007, but not in the other, Nino, 690 F.3d at 697–98.
We see the question this way: When Section 1227(a)(1)(A) makes a
generic cross-reference to all other statutes that make an alien inadmissible
either at the point of entry or an adjustment of status, is it adopting only what
another statute identifies as grounds for inadmissibility, or is it also adopting
the other statute’s limitations, such as when those grounds of inadmissibility
apply? In both Paz Calix and Nino, we closely analyzed the text of the cross-
11
Case: 14-60065 Document: 00513645159 Page: 12 Date Filed: 08/19/2016
No. 14-60065
referencing statute to determine what it was adopting from the referenced
statute. See Paz Calix, 784 F.3d at 1011–12; Nino, 690 F.3d at 697–98. We
will do the same here.
In Nino, the cross-referencing statute defined eligibility for cancellation
of removal; it had a condition that an alien not have been “convicted of an
offense under” three other referenced statutes. Nino, 690 F.3d at 696 (citing 8
U.S.C. § 1229b(b)(1)(C)). One of the referenced statutes, the same Section 1227
involved in our case, placed certain limitations on which convictions would
qualify for deportation, such as how close to the date of admission an offense
was committed. Id. (citing 8 U.S.C. § 1227(a)(2)). We held that the cross-
referencing statute was, for cancellation-of-removal purposes, unambiguously
borrowing only the substantive offenses identified in Section 1227(a)(2); i.e.,
the cross-referencing statute asked whether the alien had been “convicted
under” Section 1227(a)(2)’s list of offenses irrespective of any limitations the
Section itself would apply to a conviction. Id. at 697–98.
In this case, Section 1227 is not the statute which is being referenced as
in Nino; it is the statute doing the referencing. Far from being unconcerned
about the immigration consequences of convictions or other events identified
in other statutes, Section 1227(a)(1)(A) unambiguously seeks out only such
statutes that have a specific immigration consequence, namely, a statute that
makes aliens “inadmissible” at the time of entry or adjustment of status. See
8 U.S.C. § 1227(a)(1)(A). If the relevant statute being referenced only applies
at one of those points in time, Congress has unambiguously indicated we and
the BIA must adhere to that limit. Thus, no Chevron deference is owed. See
Orellana-Monson, 685 F.3d at 517.
In conclusion, we apply the law in existence at the time Marques
adjusted his status. He was not inadmissible under Section 1182(a)(7), which
applies only to applications for admission, unless the INA makes an
12
Case: 14-60065 Document: 00513645159 Page: 13 Date Filed: 08/19/2016
No. 14-60065
adjustment of status the equivalent of an admission. We will discuss that
question in the next section. If an adjustment is not an admission, though,
Marques’s only admission into the country occurred when he entered as a
nonimmigrant in 2001, approximately five years before the events at issue
here. There are no allegations that Marques violated document requirements
at the time he entered the United States in 2001 on a nonimmigrant visa.
Section 1227(a)(1)(A) sets out two critical events in the immigration
process, “entry” and “adjustment of status,” and applies to either event any
statute that identifies grounds for inadmissibility. Nothing in Section
1227(a)(1)(A) supports that it, like the cross-referencing statute in Nino, allows
ignoring the immigration-related limitations in the referenced statute. Indeed,
just the opposite is our reading of the statute. We now turn to whether an
adjustment of status is an admission.
2. Adjustment of status as an application for admission
We now examine the more general question of whether an adjustment of
status will fit within the meaning of an application for admission. Two INA
definitions are relevant. The first term, application for admission, refers to
“the application for admission into the United States and not to the application
for the issuance of an immigrant or nonimmigrant visa.” 8 U.S.C. § 1101(a)(4).
Second, the terms admission and admitted are both defined as “the lawful
entry of the alien into the United States after inspection and authorization by
an immigration officer.” Id. § 1101(a)(13)(A). Under that definition, the class
of “in and admitted” aliens removable under Section 1227(a) are those
physically within the United States after lawful admission.
The Government’s argument is that someone in the United States filing
for an adjustment of status is also technically applying for admission. The
Government claims this interpretation is owed Chevron deference, but the
13
Case: 14-60065 Document: 00513645159 Page: 14 Date Filed: 08/19/2016
No. 14-60065
statutory language must be unclear for that level of deference to apply.
Chevron, 467 U.S. at 842–43. The relevant term, an application for admission,
is somewhat redundantly defined — but with just enough added to clarify —
as an “application for admission into the United States . . . .” 8 U.S.C.
§ 1101(a)(4). Someone like Marques applies for an adjustment of status when
he is already in the United States, so how could the Government be right?
The Government concedes the INA’s definitions of admission and
application for admission do not “suggest[] that an adjustment may be
considered an admission . . . .” In the context of the entire INA, though, the
Government argues the use of admission in Section 1182(a)(7)(A) is
ambiguous. As the Government puts it: “Evidence of ambiguity arises in light
of the role adjustment of status plays within the overall statutory scheme.” We
agree that any understanding of specific statutory provisions requires that we
look not just at the specific words but also the context:
In determining whether Congress has specifically addressed the
question at issue, a reviewing court should not confine itself to
examining a particular statutory provision in isolation. The
meaning — or ambiguity — of certain words or phrases may only
become evident when placed in context.
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132 (2000).
We are urged to press on beyond the seemingly clear language of the
statute into the ambiguity created by the overall operation of the INA. The
possibility of venturing beyond the confines of Sections 1227(a)(1)(A) and
1182(a)(7)(A) causes us to recall comments by Chief Judge Irving R. Kaufman
of the Second Circuit, who noted the INA’s “striking resemblance” to “King
Minos’s labyrinth in ancient Crete.” See Rickey v. United States, 592 F.2d 1251,
1256 n.5 (5th Cir. 1979) (quoting Lok v. INS, 548 F.2d 37, 38 (2d Cir. 1977)).
With the wariness that comes from prior encounters with the labyrinth, we
press on to that dark and mysterious realm.
14
Case: 14-60065 Document: 00513645159 Page: 15 Date Filed: 08/19/2016
No. 14-60065
Part of the relevant context comes from understanding the background
of the concept of adjustment of status. Once upon a time, anyone who wanted
to become an “immigrant” and not just a temporary visitor had
to obtain an immigrant visa at a U.S. embassy or consulate abroad
[usually in their home country] and then travel to the United
States and seek admission as lawful permanent residents. As
such, these laws provided no legal procedure by which a foreign
national already physically present in the United States could
become a permanent resident without first leaving the country to
obtain the required immigrant visa.
7 U.S. CITIZENSHIP & IMMIGRATION SERVS., USCIS POLICY MANUAL, pt. A, ch.
1, § B.1 (2016). Obtaining a visa in that way is called “consular processing.”
Id. n.2. Then, for just under two decades prior to the adjustment of status
procedure being created, nonimmigrants could travel to Canada to apply at a
consulate there. Id. The need to leave at all for this purpose ended with the
1952 INA. Id. § B.2. Now, an alien who did not initially enter as an immigrant
could become an LPR through the adjustment of status procedure and did not
need a new admission or an immigrant visa. See Immigration and Nationality
Act, Pub. L. No. 82-414, § 245, 66 Stat. 163, 217 (1952) (codified as amended at
8 U.S.C. § 1255). Generally, an adjustment of status is sought by someone like
Marques who was admitted on a nonimmigrant visa. 2
The Government’s argument that an adjustment is the equivalent of a
new admission implicitly draws from this background. Using this history as
context, the strongest statutory support for allowing an adjustment of status
to be an application for admission is that once the application is approved, “the
Attorney General shall record the alien’s lawful admission for permanent
2 Adjustment of status is available even for some who entered without inspection.
See, e.g., 8 U.S.C. § 1255(i). It is also possible for an alien to adjust in the opposite direction,
i.e., from the status of an immigrant to that of a nonimmigrant. Id. §1257.
15
Case: 14-60065 Document: 00513645159 Page: 16 Date Filed: 08/19/2016
No. 14-60065
residence as of the date the order . . . approving the application for the
adjustment of status is made . . . .” 8 U.S.C. § 1255(b).
Thus, the nonimmigrant’s application for an adjustment of status is an
application for what will be recorded as an admission for permanent residence.
Congress avoided using the articulation that a resident nonimmigrant simply
became a resident immigrant. Instead, the nonimmigrant is to be admitted
again as an immigrant, even if the admission is by a record entry and not by a
physical entry. Perhaps through the artificiality of deeming that a person
whose status has been adjusted is admitted as an immigrant as of that date,
Congress was assuring that all ramifications of being present after lawful
admission in that status will apply, and those of being present without a lawful
admission will not apply.
Though the BIA’s interpretation has considerable promise, we hesitate
to give Chevron deference. We hesitate because there has been much judicial
wrestling with a closely related argument. The BIA lost every round and
finally conceded the match. We will discuss those cases next, then determine
how that caselaw applies here. Our purpose is to explore whether accepting
the Government’s reading creates unacceptable tension with the caselaw
regarding another provision.
III. Waivers under Section 1182(h)
The related section of the INA that has been the subject of much judicial
attention is Section 1182(h). It is a later part of the same section we have been
discussing dealing with which aliens are inadmissible. Section 1182(h)
governs the Attorney General’s discretion to waive inadmissibility for select
classes of aliens. The relevant portion provides a limit to the Attorney
General’s discretion:
16
Case: 14-60065 Document: 00513645159 Page: 17 Date Filed: 08/19/2016
No. 14-60065
No 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 . . . since the
date of such admission the alien has been convicted of an
aggravated felony . . . .
8 U.S.C. § 1182(h) (emphasis added). In a series of cases, aliens subject to
removal argued this waiver bar applied only to those aliens who entered the
United States as an LPR, not those aliens who adjusted their status post-entry.
The Government argued that the prohibition on waivers also applied to aliens
who had an adjustment of status to that of an LPR.
Nearly every circuit to address this issue agreed with the LPRs who had
adjusted their status. 3 See, e.g., Martinez, 519 F.3d at 546; see also J-H-J-, 26
I. & N. Dec. 563, 564 (B.I.A. 2015) (collecting cases). The BIA, recognizing
“overwhelming circuit court authority” opposing its view, recently withdrew its
own caselaw holding otherwise. J-H-J-, 26 I. & N. Dec. at 564.
We addressed the Section 1182(h) issue in a case in which the petitioner
had been convicted of bank fraud. Martinez, 519 F.3d at 536. Martinez’s
conviction triggered removal proceedings, during which the IJ categorized the
conviction as an aggravated felony and held Martinez to be barred from a
waiver under Section 1182(h). Id. at 536–37. In his petition for review,
Martinez argued the waiver bar did not apply because he had not “previously
been admitted” as an LPR. Id. at 541–42. Rather, Martinez’s status was
adjusted ten years after his admission, making him eligible for discretionary
waiver under Section 1182(h). Id. at 542. The Government urged that we
interpret the term admission to include adjustment of status. Id.Relying on the INA’s definition of admission and admitted in Section
1101(a)(13)(A), we held “‘admission’ is the lawful entry of an alien after
3 One Circuit disagreed: Roberts v. Holder, 745 F.3d 928, 931–33 (8th Cir. 2014).
17
Case: 14-60065 Document: 00513645159 Page: 18 Date Filed: 08/19/2016
No. 14-60065
inspection, something quite different, obviously, from post-entry adjustment of
status, as done by Martinez.” Id. at 544. The Section 1182(h) bar applies only
“when the alien is granted permission, after inspection, to enter the United
States, [and then is] admitted as an LPR.” Id. We found further support for
this interpretation in the “longstanding principle of construing any lingering
ambiguities in deportation statutes in favor of the alien.” Id.The Government argued that the interpretation we adopted would
frustrate the purpose of Section 1182(h) by making an inexplicable distinction
between those who enter as LPRs and those who adjust their status post-entry.
Id. We disagreed. Finding plausible explanations for a distinction, we held
“we are not at liberty to override the plain, unambiguous text of” Sections
1182(h) and 1101(a)(13)(A). Id. at 545.
The opinion also dealt with the language we have previously discussed
here from Section 1255(b), id. at 545–46, which provides that after an
adjustment of status, the Attorney General will record the effect of that
adjustment as a “lawful admission for permanent residence as of the date” of
the adjustment, 8 U.S.C. § 1255(b). The court referred to the statutory
definition of lawfully admitted for permanent residence. Martinez, 519 F.3d at
546. It means “the status of having been lawfully accorded the privilege of
residing permanently in the United States as an immigrant in accordance with
the immigration laws, such status not having changed.” 8 U.S.C. § 1101(a)(20).
We held that this definition had a distinct and limited purpose separate from
the general concept of being admitted. See Martinez, 519 F.3d at 545–46.
Thus, the plain language of Section 1182(h)’s waiver bar, which requires that
an alien be previously admitted as an LPR, was inapplicable to aliens who
adjusted status post-entry.
In the present case, the interpretation we are to make is in a different
context than that of Martinez, as the Government urges us to remember.
18
Case: 14-60065 Document: 00513645159 Page: 19 Date Filed: 08/19/2016
No. 14-60065
Section 1182(a)(7) is the statute we consider, and it was not discussed in
Martinez. Our issue is whether applying for relief — adjustment of status —
that leads to an alien being lawfully admitted for permanent residence can be
equated to an application for admission. Is there enough in the ambiguities of
the statutory context to allow us to give deference to the BIA’s interpretation
in this slightly different context and regarding slightly different terms than in
Martinez? We conclude there is not. The circuits have been nearly unanimous
that in the Section 1182(h) context, we will not equate the process of being
admitted as an LPR, as defined in the statute, to the process of an adjustment
of status to an LPR. Because the BIA first was rebuffed by the courts of appeals
in its effort to have an adjustment considered an admission for purposes of
Section 1182(h), and then conceded the point in its own adjudications, the BIA
has now an extremely high hurdle to convince this court that a similarly
worded provision elsewhere should receive a different interpretation.
Indeed, Congress has shown it knows the adjustment-of-status phrase
and can use it when it wants. For example, Section 1182(a)(1)(A)(ii) makes
removable any alien “who seeks admission as an immigrant, or who seeks
adjustment of status to the status of an alien lawfully admitted for permanent
residence . . . .” Section 1182(a)(2)(D) applies to aliens who engaged in
prostitution “within 10 years of the date of application for a visa, admission, or
adjustment of status . . . .” Section 1182(a)(4)(A) applies to any alien who “at
the time of application for admission or adjustment of status[] is likely at any
time to become a public charge . . . .”
“[W]e ‘generally presume’ that, ‘[w]here Congress includes particular
language in one section of a statute but omits it in another section of the same
Act, . . . Congress acts intentionally and purposely in the disparate inclusion
or exclusion.’” Rodriguez-Avalos v. Holder, 788 F.3d 444, 451 (5th Cir. 2015)
(second alteration in original) (quoting Brown v. Gardner, 513 U.S. 115, 120
19
Case: 14-60065 Document: 00513645159 Page: 20 Date Filed: 08/19/2016
No. 14-60065
(1994)). Section 1182(a)(7)(A)’s omission of adjustment of status gives some
support to Congress’s not intending its documentation requirements to apply
to aliens seeking post-entry adjustment of status.
Though Section 1182(a)(7) has not gotten the attention that Section
1182(h) has, another circuit court recently concluded that Section 1182(a)(7)
“only applies to applicants for admission and not to immigrants . . . who sought
post-entry adjustment of status while already in the United States.” Ortiz-
Bouchet v. U.S. Attorney Gen., 714 F.3d 1353, 1356 (11th Cir. 2013). For the
reasons discussed, we agree with the Eleventh Circuit.
Before finishing our review, we discuss an authority not briefed by the
parties. We are analyzing an issue of law, which allows for de novo review.
Still, we are wary of venturing into the INA and its regulations without some
guidance, so our purpose is only to highlight a possibly relevant regulation.
IV. 8 C.F.R. § 245.4In a Federal Rule of Appellate Procedure 28(j) letter, Marques referred
to 8 C.F.R. § 245.4 but, consistent with that rule, did not meaningfully brief its
effect. That regulation states:
The provisions of part 211 of this chapter relating to the
documentary requirements for immigrants shall not apply to an
applicant under this part.
8 C.F.R. § 245.4. Section 245 of the regulations as well as of the INA concern
adjustment of status. The Government filed no response on this point.
Marques’s Rule 28(j) letter also referred to one of our decisions in which
we held that adjustment of status resulted in the applicant’s being “assimilated
to the position of an applicant for entry and, therefore, [the alien] must comply
with all but the documentary requirements for entry.” Pei-Chi Tien v. INS, 638
F.2d 1324, 1326 (5th Cir. Unit A Mar. 1981) (emphasis added) (citation
omitted) (citing 8 C.F.R. § 245.5, now § 245.4).
20
Case: 14-60065 Document: 00513645159 Page: 21 Date Filed: 08/19/2016
No. 14-60065
This regulation is not of recent vintage. Though it was not in the original
set of regulations for the INA promulgated in December 1952, Immigration
and Nationality Regulations, 17 Fed. Reg. 11469, 11518 (Dec. 19, 1952), what
is now Section 245.4 first appeared with almost that exact language in March
1954. Miscellaneous Amendments to the Immigration and Nationality
Regulations, 19 Fed. Reg. 1138 (Mar. 2, 1954) (then numbered § 245.2; referred
to § 211.1, instead of “part 211” as today).
If Section 245.4 of the regulations removes any requirement that
someone engaged in the adjustment of status process have the documents set
out in Section 1182(a)(7), that would moot the need to resolve whether an
adjustment of status is an application for admission under that section. Thus,
we mention 8 C.F.R. § 245.4 so that it might be addressed, if necessary, in the
future. We do not rely on it in our decision in this petition for review.
V. Conclusion
We hold that Sections 1227(a)(1)(A) and 1182(a)(7)(A) are not ambiguous
as to the issue before us. Specifically, the documentation requirements of
Section 1182(a)(7) do not apply to an alien who was previously validly admitted
as a nonimmigrant, who is residing in the United States, and who applies for
an adjustment of status. 4
The BIA found that Marques adjusted his status on the basis of a
fraudulent marriage. It appears the Government had other alternatives to
remove Marques due to his fraudulent marriage. We are simply announcing
the failure of the only charge on which his removal is based.
The Government argues that this conclusion, if extended to every provision in the
4
INA, would create absurd results. We find ourselves bound by the reasoning of Martinez,
which as we have noted here also faced arguments about absurd consequences. The
ramifications of this opinion can be addressed if they arise in subsequent cases.
21
Case: 14-60065 Document: 00513645159 Page: 22 Date Filed: 08/19/2016
No. 14-60065
Marques’s petition for review of the BIA’s order of removal is GRANTED.
The BIA’s judgment is VACATED. Marques’s petition for review of the BIA’s
decision denying a motion to reopen is DENIED as MOOT.
22