Dimitrios Papazoglou v. Eric Holder, Jr. , 725 F.3d 790 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2372
DIMITRIOS PAPAZOGLOU,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney
General of the United States,
Respondent.
On Petition For Review of an Order of the
Board of Immigration Appeals.
No. A070-422-780
ARGUED NOVEMBER 30, 2012 — DECIDED AUGUST 6, 2013
Before BAUER, ROVNER, and WILLIAMS, Circuit Judges.
ROVNER, Circuit Judge. Petitioner Dimitrios Papazoglou
(“Papazoglou”) is a native and citizen of Greece who entered
the United States on a B-2 visitor’s visa on July 19, 1986. A little
over a year later, in September 1987, he married a U.S. citizen,
Hariklia Papazoglou (“Hariklia”), and based on that marriage
he adjusted his status to lawful permanent resident on
2 No. 12-2372
July 16, 1990. He has four children: a U.S. citizen stepson, Alex;
a permanent resident daughter, Eleni; a U.S. citizen son
Konstandinos; and a U.S. citizen son Mehalis.
On April 4, 2008, Papazoglou pled guilty to third-degree
sexual assault under Wis. Stat. § 940.225(3) and physical abuse
of a child in violation of Wis. Stat. § 948.03(3)(b). He was
sentenced to 2 ½ years’ imprisonment and 4 ½ years proba-
tion.
Based on his conviction of an aggravated felony, the
Department of Homeland Security (DHS) charged Papazoglou
with removability under the Immigration and Nationality Act
(INA) § 237(a)(2), 8 U.S.C.A. § 1227(a)(2)(A)(iii). Before the
Immigration Judge (“IJ”), Papazoglou filed a Form I-485
application for adjustment of status pursuant to INA § 245(s)
based on his marriage to a United States citizen, 8 U.S.C.
§ 1255(a), and in conjunction with that he filed a Form I-601
application for waiver of grounds of inadmissibility under INA
§ 212(h), which would allow him to obtain a waiver of the
inadmissibility arising from that aggravated felony conviction.
8 U.S.C. § 1182(h). The IJ granted the waiver and the adjust-
ment of status, and the government appealed that decision to
the Board of Immigration Review (the “Board”). Reviewing the
IJ’s decision de novo, the Board agreed with the government
that Papazoglou was statutorily ineligible for the waiver. The
Board also held that even if Papazoglou were eligible for the
waiver, he would not be entitled to it as a matter of discretion.
Papazoglou has appealed that determination to this court.
Our jurisdiction to review such decisions of the Board is
limited. The Board held that Papazoglou was removable based
No. 12-2372 3
on his commission of an aggravated felony, 8 U.S.C.
§ 1227(a)(2)(A)(iii), and the INA, as amended by the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996,
precludes judicial review of such removal decisions. 8 U.S.C.
§ 1252(a)(2)(C); Vaca-Tellez v. Mukasey, 540 F.3d 665, 668 (7th
Cir. 2008). The REAL ID Act of 2005 provides, however, that
judicial review is available for constitutional claims or ques-
tions of law presented in a petition for review, and therefore
we are precluded only from considering challenges that do not
fall within those categories such as the Board’s discretionary
determinations. Id. at 668-69; 8 U.S.C. § 1252(a)(2)(D); Hanif v.
Atty. General of the United States, 694 F.3d 479, 483 (3d Cir.
2012). Therefore, in a challenge to the denial of a § 212(h)
waiver, the court lacks jurisdiction to review the Attorney
General’s discretionary determination, but may review
questions of law presented by the Board’s construction of
§ 212(h). Vaca-Tellez, 540 F.3d at 669; Martinez v. Mukasey, 519
F.3d 532, 541 (5th Cir. 2008).
Papazoglou raises two arguments here. The first is that the
Board erred in determining that he was statutorily ineligible
for the § 212(h) waiver. Papazoglou argues that the Board
improperly interpreted the statutory language, and that he was
eligible for a § 212(h) waiver under the language of that
statutory provision. That challenge is a legal one, which we
review de novo. Klementanovsky v. Gonzales, 501 F.3d 788, 791
(7th Cir. 2007).
Papazoglou also contests the Board’s decision that it would
not grant the waiver as a matter of discretion. Because we lack
jurisdiction to review discretionary decisions, Papazoglou
attempts to recharacterize that argument, contending that the
4 No. 12-2372
Board erred as a matter of law in that it failed to defer to the
IJ’s fact findings and it did not properly consider the evidence
in the record. Accordingly, Papazoglou maintains that we have
jurisdiction to review that legal error.
Section 212(h) gives the Attorney General the discretion to
allow noncitizens to enter or remain in the United States
despite their commission of certain crimes. Prior to 1996, the
only aliens categorically barred from receiving § 212(h) waivers
were aliens who had been convicted of murder or criminal acts
involving torture, or the attempt or conspiracy to commit such
crimes. Leiba v. Holder, 699 F.3d 346, 348-49 (4th Cir. 2012);
Jankowski-Burczyk v. INS, 291 F.3d 172, 175 (2d Cir. 2002). The
Immigration Reform and Immigrant Responsibility Act of 1996,
(IIRIRA) created a new category of ineligible aliens in § 212(h),
providing that “[n]o waiver shall be granted under this
subsection in the case of an alien who has previously been
admitted to the United States as an alien lawfully admitted for
permanent residence if … since the date of such admission the
alien has been convicted of an aggravated felony … .” 8 U.S.C.
§ 1182(h); . Leiba, 699 F.3d at 348-39; Jankowski-Burczyk, 291 F.3d
at 175 -76. Under Chevron U.S.A. Inc. v. NRDC, Inc., 467 U.S.
837, 842-44 (1984), in considering the scope of that provision,
we determine whether to grant deference to the Board’s
interpretation by applying a two-part test. EEOC v. Thrivent
Financial for Lutherans, 700 F.3d 1044, 1049 (7th Cir. 2012);
Arnett v. C.I.R., 473 F.3d 790, 793 (7th Cir. 2007); Leiba, 699 F.3d
at 348; Martinez, 519 F.3d at 542-43; Hanif, 694 F.3d at 483. First,
if the statute is unambiguous and has spoken directly to the
precise issue such that the intent is clear, we simply give effect
to that intent. Id. The plain language of the statute is the most
No. 12-2372 5
instructive and reliable indicator of that Congressional intent.
Thrivent Financial, 700 F.3d at 1049; Martinez, 519 F.3d at 543.
Where the intent is not clear and Congress has not directly
addressed the precise question, courts will consider whether
the agency construction of the statute is a permissible one. Id.As applied here, if the language of § 212(h) is plain and the
intent is clear, we will apply that intent; if, however, the
language of § 212(h) ambiguous, we will consider the Board’s
interpretation and defer to it if that construction is a permissi-
ble one.
The first issue in this case is whether Papazoglou is “an
alien who has previously been admitted to the United States as
an alien lawfully admitted for permanent residence” as used in
§ 212(h). That rather tortured language has been interpreted by
a number of circuits, all of which have agreed as to its mean-
ing. See Hanif v. Atty. General of the United States, 694 F.3d 479,
483 (3d Cir. 2012); Bracamontes v. Holder, 675 F.3d 380, 386–87
(4th Cir. 2012); Lanier v. U.S. Atty Gen., 631 F.3d 1363, 1366–67
(11th Cir. 2011); Martinez v. Mukasey, 519 F.3d 532, 546 (5th Cir.
2008); see also Hing Sum v. Holder, 602 F.3d 1092, 1097 (9th Cir.
2010). Those circuits look to the definitions of “admitted” and
“admission,” and the term “lawfully admitted for permanent
residence,” in the INA. “Admitted” and “admission” 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.” 8 U.S.C § 1101(a)(13)(A); Leiba, 699
F.3d at 349 . That provision therefore encompasses the action
of an entry into the United States, accompanied by an inspec-
tion or authorization. The subsequent term, “lawfully admitted
for permanent residence,” is the status of having been lawfully
6 No. 12-2372
accorded the privilege of residing permanently in the United
States. Hanif, 694 F.3d at 485; Leiba, 699 F.3d at 350. Under 8
U.S.C. § 1255(b), the Attorney General “shall record the alien’s
lawful admission for permanent residence as of the date the
order of the Attorney General approving the application for
adjustment of status is made.” Hanif, 694 F.3d at 485. Applying
those definitions, the circuit courts of appeal have held that
§ 212(h) precludes a waiver only for those persons who, at the
time they lawfully entered into the United States, had attained
the status of lawful permanent residents. Hanif, 694 F.3d at 487;
Bracamontes, 675 F.3d at 386–87; Lanier, 631 F.3d at 1366–67;
Martinez, 519 F.3d at 546.
The Board has refused to follow those circuits, and applies
a different interpretation in all circuits but the ones which have
specifically addressed the issue and held otherwise. Urging us
to follow the lead of the Board rather than the other circuits,
the government argues that the definition of “admitted” is not
dispositive here, because the INA also provides that when a
person’s status is adjusted, that person is “lawfully admitted
for permanent residence” as of that date of adjustment and that
date constitutes the date of admission. Relying on that statu-
tory provision, the government argues that a person is
“admitted to the United States as an alien lawfully admitted
for permanent residence” as of the date at which the person
attains permanent resident status, because that constitutes a
date of admission. That argument, however, would render
irrelevant the first part of that § 212(h) provision. The provision
does not preclude waiver for any person who was lawfully
admitted for permanent residence; instead, it precludes waiver
only for those persons who had “previously been admitted to the
No. 12-2372 7
United States as a person lawfully admitted for permanent resi-
dence.” [emphasis added] The government’s interpretation
would conflate the two requirements, and preclude waiver
whenever a person was lawfully admitted for permanent
residence. We will not interpret a statute in a manner that
renders part of it irrelevant, particularly where, as here, the
statute has an unambiguous meaning if we simply apply the
definition provided in the statute itself. We agree with the
other circuits that have held that by its plain language, § 212(h)
waiver is precluded only when the person was a lawful
permanent resident at the time of his or her lawful entry into
the United States. Because Papazoglou entered the United
States on a visitor’s visa and was not a lawful permanent
resident at that time, he does not fall within that language and
therefore is not precluded from consideration for the waiver.
That does not end our inquiry, however, because the Board
held that even if Papazoglou were eligible for the waiver, it
would decline to grant him a waiver as a matter of discretion.
That holding is a discretionary determination over which we
lack jurisdiction. Vaca-Tellez, 540 F.3d at 668. Papazoglou does
not in fact dispute that we lack jurisdiction to consider discre-
tionary determinations, and forswears any such challenge.
Instead, he attempts to avoid the clear application of that
jurisdictional principle here by contending that the Board
based its decision not on a valid exercise of its discretion, but
on an error of law as to what factors had to be considered and
without the proper deference to the factual findings of the IJ.
A review of Papazoglou’s claims, however, reveals that the
Board applied the appropriate legal standards, and that his
8 No. 12-2372
challenge ultimately constitutes a disagreement with the
Board’s exercise of discretion in refusing to grant the waiver.
Papazoglou asserts that although the Board claimed to have
left the IJ’s factual findings undisturbed, the decision of the
Board reveals that the Board exceeded the scope of its author-
ity by essentially failing to properly consider all of the relevant
facts as found by the IJ. According to Papazoglou, the Board
erred in that it did not respect the role of the IJ in the factfind-
ing process, and reached new conclusions in the absence of
clear error by the IJ. Papazoglou asserts that the role of the
Board is a limited one, and that it may not reweigh the evi-
dence and substitute its own evidence absent clear error.
In support of this contention, Papazoglou maintains that
the Board explicitly acknowledged only two harms to
Papazoglou’s qualifying relatives that would be caused by his
removal: that his wife and children would suffer emotional
hardship and that they would experience financial harm.
According to Papazoglou, in characterizing the impact as
“emotional hardship” without elaborating, the Board effec-
tively overruled sub silentio the IJ’s finding that Papazoglou’s
family would suffer severe psychiatric consequences.
Papazoglou points to evidence presented that Papazoglou’s
family members could experience depression and suicidal
ideation as a result of his removal. In addition, Papazoglou
argues that the Board merely noted the serious health condi-
tions faced by Papazoglou’s wife, but did not analyze how
those conditions would be affected by Papazoglou’s departure.
Finally, Papazoglou asserts that the Board failed to discuss the
IJ’s conclusions that Papazoglou presented a low risk of
reoffending and that he had taken positive steps toward
No. 12-2372 9
rehabilitation, instead stating merely that Papazoglou had
developed a plan for engaging in rehabilitative services.
Those contentions unfairly characterize the Board’s
decision, and do not in fact present a legal challenge. The
Board explicitly referenced the findings of facts made by the IJ,
stating that those factual findings were not challenged by
either party on appeal and that it found no clear error as to
those findings. The Board then proceeded to discuss the areas
of hardship asserted by Papazoglou. Given its statement that
the IJ’s determination of facts was unchallenged on appeal, the
Board was not required to restate those facts in explicit detail
where a shorthand reference would make clear that those facts
were considered. The Board made it clear that it had reviewed
and considered the facts relating to the impact on the family in
terms of emotional and physical health, and the rehabilitative
efforts by Papazoglou. The Board need not use the precise
language of the IJ in order for us to determine that the Board
properly reviewed the IJ’s fact findings, particularly where the
Board has explicitly noted that there was no dispute as to those
fact findings and no clear error. There is, in short, nothing here
to indicate that the Board applied an improper legal standard.
Nor did the Board err in applying the law to those facts.
Papazoglou repeatedly asserts that the Board selectively
focused on the “bad” facts while ignoring or diminishing the
“positive” facts. In fact, Papazoglou goes so far as to character-
ize the Board’s decision as employing a per se rule that no
amount of positive equities could have allowed for a grant of
relief for Papazoglou’s particular conviction, which he con-
tends is a violation of the due process clause. That once again
is an effort to recharacterize a discretionary determination as
10 No. 12-2372
a legal or constitutional challenge, in order to shoehorn the
appeal into our limited jurisdictional window. The Board held
that notwithstanding the positive equities, the serious and
recent criminal conviction involving sexual assault of a minor
outweighed the favorable factors presented. That is a proper
weighing of the factors. The Board never indicates that no
amount of positive factors could outweigh such a conviction,
just that in this case the balance is not favorable to Papazoglou.
The Board may consider such a conviction, involving the
sexual abuse of a ten year old child, to be so serious a matter
that it can not easily be outweighed in determining whether a
discretionary waiver is appropriate. That is not problematic. In
fact, the Board declared that it did not need to determine
whether the hardship rose to the level of exceptional and
extremely unusual hardship under 8 CFR § 1212.7(d), choosing
instead to operate from the premise that the relevant hardship
standard was met and determining whether to exercise its
discretion given those facts. Papazoglou’s real dispute is with
the Board’s conclusion as to whether the waiver should be
granted as a matter of discretion given those fact findings, but
we lack jurisdiction to review that discretionary determination.
Because his legal challenges are unsupported by the record, his
claims are without merit and the decision of the Board is
AFFIRMED.