Robert Stanovsek v. Eric Holder, Jr. , 768 F.3d 515 ( 2014 )


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  •                                RECOMMENDED FOR FULL-TEXT PUBLICATION
    Pursuant to Sixth Circuit I.O.P. 32.1(b)
    File Name: 14a0245p.06
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    _________________
    ROBERT MICHAEL STANOVSEK,                                       ┐
    Petitioner,    │
    │
    │         No. 13-3279
    v.                                                   │
    >
    │
    ERIC H. HOLDER, JR., Attorney General,                          │
    Respondent.      │
    ┘
    On Petition for Review of an Order of the Board of Immigration Appeals.
    No. A029 876 895—Cleveland.
    Argued: March 26, 2013
    Decided and Filed: September 24, 2014
    Before: BOGGS and ROGERS, Circuit Judges; STEEH, District Judge.*
    _________________
    COUNSEL
    ARGUED: Thomas E. Moseley, LAW OFFICES OF THOMAS E. MOSELEY, Newark, New
    Jersey, for Petitioner. Kelly J. Walls, UNITED STATES DEPARTMENT OF JUSTICE,
    Washington, D.C., for Respondent. ON BRIEF: Thomas E. Moseley, LAW OFFICES OF
    THOMAS E. MOSELEY, Newark, New Jersey, for Petitioner. Janice K. Redfern, UNITED
    STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Mary Kenney,
    Beth Werlin, AMERICAN IMMIGRATION COUNCIL, Washington, D.C., for Amicus Curiae.
    ROGERS, J., delivered the opinion of the court, in which STEEH, D.J., joined. BOGGS,
    J. (pp. 9–13), delivered a separate dissenting opinion.
    *
    The Honorable George C. Steeh, III, United States District Judge for the Eastern District of Michigan,
    sitting by designation.
    1
    No. 13-3279                   Stanovsek v. Holder                                     Page 2
    _________________
    OPINION
    _________________
    ROGERS, Circuit Judge. This case raises the issue of whether an alien who has adjusted
    his status to that of a lawful permanent resident after being admitted to the United States on a
    nonimmigrant visa, and who is later subject to removal for committing an aggravated felony,
    may seek a hardship waiver. A provision of the Immigration and Nationality Act (“the Act”)
    bars such a hardship waiver for an alien admitted to the United States in the first place as an
    immigrant, but the bar cannot be read to extend to aliens who were lawfully admitted first as
    nonimmigrants and who later adjusted to immigrant status. The basis for such a distinction is
    very hard to see, and the Attorney General accordingly argues that the bar applies in both
    instances. The inescapably clear language of the statute, however, requires the conclusion that
    the bar does not extend to the latter situation. The decision of the Board of Immigration Appeals
    relying on the bar therefore cannot stand in this case.
    Petitioner Stanovsek, a citizen of Australia, was admitted on a nonimmigrant visitor visa
    in 1990 and later adjusted status to lawful permanent resident by virtue of his marriage to a
    United States citizen. In September 2009, Stanovsek was convicted for the offense of aggravated
    theft, in violation of Ohio Rev. Code § 2913.02(A)(1), and was sentenced to three years of
    imprisonment. Stanovsek’s crime constituted an aggravated felony under § 101(a)(43)(G) of the
    Act, 
    8 U.S.C. § 1101
    (a)(43)(G), which defines an aggravated felony to include theft offenses for
    which the term of imprisonment is at least one year. Consequently, the Department of Homeland
    Security charged Stanovsek with removability under 
    8 U.S.C. § 1227
    (a)(2)(A)(iii), as a non-
    citizen convicted of an aggravated felony after his admission to the United States.
    At the removal hearing, Stanovsek conceded the charge of removability, but requested an
    adjustment of status and a waiver from removal under § 212(h), which applies when removal
    would impose “extreme hardship” on the alien’s United States citizen spouse, parent, or child.
    
    8 U.S.C. § 1182
    (h). The Immigration Judge determined that Stanovsek was ineligible for a
    § 212(h) waiver under the BIA precedent of Matter of Rodriguez, because he was convicted of
    No. 13-3279                  Stanovsek v. Holder                                       Page 3
    an aggravated felony after adjusting status, and the BIA affirmed the Immigration Judge’s
    decision on that ground. The BIA relied on the Act’s provision that:
    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).     The BIA in Rodriguez had interpreted this language to mean that “212(h)
    relief is unavailable to any alien who has been convicted of an aggravated felony after acquiring
    lawful permanent resident status,” except in jurisdictions where controlling circuit law forbade it
    from doing so. Rodriguez, 
    25 I. & N. Dec. 784
    , 789 (BIA 2012).
    The statutory language however is clear and unambiguous that a § 212(h) waiver is
    precluded after a conviction of an aggravated felony only when the removable person had
    attained the status of lawful permanent resident at the time of his or her lawful entry into the
    United States. See 
    8 U.S.C. § 1182
    (h). The Immigration and Nationality Act defines “admitted”
    and “admission” to mean “with respect to an alien, the lawful entry of the alien into the United
    States after inspection and authorization by an immigration officer.” 
    8 U.S.C. § 1101
    (a)(13)(A)
    (emphasis added). “[The § 212(h) language] therefore encompasses the action of an entry into
    the United States, accompanied by an inspection or authorization.” Papazoglou v. Holder,
    
    725 F.3d 790
    , 793 (7th Cir. 2013). In addition, “lawfully admitted for permanent residence,” is
    statutorily defined as “the status of having been lawfully accorded the privilege of residing
    permanently in the United States as an immigrant.” 
    8 U.S.C. § 1101
    (a)(20); see also Papazoglou,
    725 F.3d at 793. “This term encompasses all [lawful permanent residents], regardless of whether
    they obtained that status prior to or at the time they physically entered the United States or by
    adjusting their status while already living in the United States.” Negrete-Ramirez v. Holder,
    
    741 F.3d 1047
    , 1053 (9th Cir. 2014). Thus the statutory language with the statutory definitions
    substituted is as follows:
    No waiver shall be granted under this subsection in the case of an alien who has
    previously [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 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 aggravated
    felony.
    No. 13-3279                  Stanovsek v. Holder                                        Page 4
    This language cannot be stretched to bar an alien who did not enter as an alien with
    immigrant status, but who lawfully entered as a non-immigrant and later adjusted status. Not
    only does the language clearly not say that, but also such a result could quite easily have been
    obtained by saying something much simpler, such as:
    No waiver shall be granted under this subsection in the case of a lawful permanent
    resident if . . . since the date of obtaining such status the alien has been convicted
    of an aggravated felony.
    This conclusion comports with holdings in the Third, Fourth, Fifth, Seventh, Ninth, and
    Eleventh Circuits that “the text [of 
    8 U.S.C. § 1182
    (h)] is unambiguous and . . . the bar to
    seeking a § 212(h) waiver of inadmissibility does not apply to persons who adjusted to lawful
    permanent resident status after having entered into the United States by inspection.” Negrete-
    Ramirez, 741 F.3d at 1050; see also Papazoglou, 725 F.3d at 792–94; Leiba v. Holder, 
    699 F.3d 346
    , 348–56 (4th Cir. 2012); Hanif v. Attorney Gen., 
    694 F.3d 479
    , 483–87 (3d Cir. 2012);
    Bracamontes v. Holder, 
    675 F.3d 380
    , 382, 384–89 (4th Cir. 2012); Lanier v. U.S. Attorney
    Gen., 
    631 F.3d 1363
    , 1365–67 (11th Cir. 2011); Martinez v. Mukasey, 
    519 F.3d 532
    , 541–46 (5th
    Cir. 2008).
    Although not on all fours, our decision in Zhang v. Mukasey, 
    509 F.3d 313
     (6th Cir.
    2007), also supports this conclusion. In that case we addressed the meaning of “admission” in
    the context of removal under § 237(a)(2)(A)(i) of the Act, 
    8 U.S.C. § 1227
    (a)(2)(A)(i), for
    committing a crime of moral turpitude within five years of an alien’s “date of admission.” We
    held that an adjustment of status to lawful permanent resident did not constitute an “admission”
    for purposes of 
    8 U.S.C. § 1227
    (a)(2)(A)(i).        
    509 F.3d at 314, 316
    .        We relied on the
    “unambiguous” definition of the term “admitted” set forth in 
    8 U.S.C. § 1101
    (a)(13)(A) to
    conclude that “there is only one ‘first lawful admission,’ and it is based on physical, legal entry
    into the United States.” 
    Id. at 316
    . Therefore, date of “admission” is the date of the alien’s
    lawful entry. 
    Id.
    Moreover, this court in Zhang distinguished Matter of Rosas-Ramirez, 
    22 I. & N. Dec. 616
     (BIA 1999), a case on which the Attorney General here relies, by explaining that, for an
    alien who had entered the United States illegally, as was the case in Rosas, an adjustment of
    status is an “admission” because an adjustment of status is the first point at which such an
    No. 13-3279                    Stanovsek v. Holder                                         Page 5
    individual is lawfully in the United States.        Zhang, 
    509 F.3d at 316
    .        Thus a post-entry
    adjustment of status differs in its significance between individuals who had previously entered
    the U.S. legally, and those who had first entered the United States illegally and are only lawfully
    in the United Status after completing an adjustment of status. This distinction undermines the
    Attorney General’s “adjustment-as-admission” argument, which relies heavily on BIA precedent
    involving aliens who were adjusted to lawful permanent resident status without a prior lawful
    admission to the U.S. See, e.g., Matter of Koljenovic, 
    25 I. & N. Dec. 219
     (BIA 2010); Rosas-
    Ramirez, 
    22 I. & N. Dec. 616
     (BIA 1999); Matter of Rodarte-Roman, 
    23 I. & N. Dec. 905
     (BIA
    2006); Rodriguez, 
    25 I. & N. Dec. 784
     (BIA 2012).
    While the principles of Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 
    467 U.S. 837
    , 842–43 (1984), would apply to the BIA’s interpretation of the statutory provision in
    question, that only makes a difference if the provision is ambiguous. That is not the case here,
    for the reasons already given. If “Congress has directly spoken to the precise question at issue”
    such that “the intent of Congress is clear, that is the end of the matter; for the court . . . must give
    effect to the unambiguously expressed intent of Congress.” Chevron, 
    467 U.S. at
    842–43.
    Ruling to the contrary, the Eighth Circuit has recently applied Chevron deference to
    uphold the BIA’s construction of the statutory provision in question, by finding an ambiguity
    from the use of the words “admitted” and “admission” in other provisions of the Act. Roberts v.
    Holder, 
    745 F.3d 928
    , 932 (8th Cir. 2014). However, the reasoning in Roberts is not compelling.
    The court in Roberts reasoned that, “[r]eading the immigration statutes as a whole, . . . [8 U.S.C.]
    § 1182(h) is ambiguous as to the meaning of ‘previously been admitted as an alien lawfully
    admitted for permanent residence,’” because the “immigration statutes use the words ‘admitted’
    and ‘admission’ inconsistently.”      Id.   The Roberts court pointed in particular to 
    8 U.S.C. § 1255
    (b), which provides that once an alien has adjusted to lawful permanent resident status
    under 
    8 U.S.C. § 1255
    (a), “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 the adjustment of status is made,” and the Secretary of State shall reduce the number of
    available immigrant visas accordingly. 
    Id. at 933
     (quoting 
    8 U.S.C. § 1255
    (b)). The court in
    Roberts reasoned that 
    8 U.S.C. § 1255
    (b) treats adjustment itself as an “admission” by directing
    No. 13-3279                       Stanovsek v. Holder                                                Page 6
    the Attorney General to record “admission” as of the date the alien adjusts his status, and this
    provision demonstrates that the immigration statutes may be fairly read as treating post-entry
    adjustment as a substitute for port-of-entry inspection. 
    Id.
     With respect, this does not follow.1
    
    8 U.S.C. § 1255
    (b) says that for some purposes the status of being “lawfully admitted for
    permanent residence” begins at the time of adjustment of status. This provision is perfectly
    consistent with the definition of “lawful admission” as an event occurring at the point of first
    lawful entry, while the status of “lawfully admitted for permanent residence” can be attained at
    that point of entry or at a later adjustment of status.
    Thus, 
    8 U.S.C. § 1255
    (b) refers to the date an alien attains lawful permanent resident
    status, which aligns with other uses of that term elsewhere in the statute. As this court noted in
    Zhang, the position that “there can be more than one date on which an alien is lawfully admitted
    to the country is contrary to the plain language of the statute.” Zhang, 
    509 F.3d at
    316–17
    (interpreting 
    8 U.S.C. § 1227
    (a)(2)(A)(i)). Moreover, to conclude that 
    8 U.S.C. § 1182
    (h) is
    ambiguous as to the meaning of “previously been admitted as an alien lawfully admitted for
    permanent residence” discounts the fact that the phrase is comprised of two distinct terms, both
    explicitly defined in the statute— “admitted” and “lawfully admitted for permanent residence.”
    Each defined term adds its own meaning to that phrase: the first refers to a type of entry into this
    country, while the second refers to a certain status held by aliens. Together, the phrase clearly
    describes individuals who have [lawfully entered into the U.S. after inspection and authorization]
    as an alien [with lawful immigrant status]. “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.” Papazoglou, 725 F.3d at 794.
    1
    The Third Circuit also rejected the argument that Congress clearly stated in 
    8 U.S.C. § 1255
    (b) that the
    date of the adjustment of status is the date of admission. Hanif, 694 F.3d at 485. The court held:
    The date of gaining a new status is not the same as the date of the physical event of entering the
    country. We perceive the recording requirement of § 1255(b) to be a ministerial provision relating
    to the monitoring and control of the number of visas available in any given year, rather than an
    effort by Congress to amend the definitions of “admitted” and “lawfully admitted for permanent
    residence” set forth in § 1101(a).
    694 F.3d at 485. See also Fayad v. Keller, 10-CV-03372-LHK, 
    2011 WL 884042
     at *5 (N.D. Cal. Mar. 14, 2011)
    (“As explicitly enumerated under 
    8 U.S.C. § 1255
    (b), the Court finds that Plaintiff's LPR status began anew on the
    date that the second visa was issued.”); Santillan v. Gonzales, 
    388 F. Supp. 2d 1065
    , 1083 (N.D. Cal. 2005) (noting
    that “the benefits of LPR status vest in full on the date of the EOIR’s order granting status”) (citing 
    8 U.S.C. § 1255
    (b)).
    No. 13-3279                  Stanovsek v. Holder                                      Page 7
    The Roberts opinion also does not address the fact explained above that much simpler language
    would easily have achieved the BIA’s preferred interpretation.
    The dissent points to three provisions of the INA that involve the language an “alien . . .
    admitted . . . as an alien lawfully admitted for permanent residence”: 
    8 U.S.C. §§ 1151
    (c), 1186a,
    and 1186b.    The Government’s brief, despite extensive argument regarding the historical
    backdrop, the context of neighboring words, and the language of the statute as a whole, never
    cites or relies upon §§ 1151(c), 1186a, or 1186b.         These provisions do not support the
    Government’s position.
    Section 1151(c), which deals with the calculation of the number of family-sponsored
    immigrants that can be admitted in a particular year, appears to contemplate that an alien who
    has been paroled into the United States under § 1182(d)(5) could subsequently be “admitted as
    an alien lawfully admitted for permanent residence.” 
    8 U.S.C. § 1151
    (c)(4), (5). However,
    § 1182(d)(5) makes explicit that parole under § 1182 “shall not be regarded as an admission of
    the alien.” 
    8 U.S.C. § 1182
    (d)(5). At most, § 1151(c) could be read to contemplate that
    someone paroled but not admitted could be later admitted as an alien lawfully admitted for
    permanent residence. This says nothing about an alien who has been previously admitted.
    Sections 1186a and 1186b deal with aliens who have obtained the status of lawful
    permanent residence, based on marriage or entrepreneur status, where the status is conditioned
    on a determination within two years that the marriage is valid or the entrepreneur has met certain
    investment obligations.    Sections 1186a(e) and 1186b(e) deal solely with the subsequent
    naturalization of such persons, as evidenced by the caption (“Treatment of period for purposes of
    naturalization”) and the limiting initial language of the subsections (“For purposes of subchapter
    III,”). Subchapter III covers “Nationality and Nationalization.” Sections 1186a(e) and 1186b(e)
    provide that while having LPR status on a conditional basis, the alien “For purposes of
    Subchapter III . . . shall be considered to have been admitted as an alien lawfully admitted for
    permanent residence and to be in the United States as an alien lawfully admitted to the United
    States for permanent residence.” §§ 1186a; 1186b. At most these provisions suggest that an
    alien may be “considered” as having been admitted (not necessarily that the alien has been) for
    the limited purposes of the naturalization provisions of the INA, which impose, for instance, time
    No. 13-3279                   Stanovsek v. Holder                                    Page 8
    requirements as an LPR before naturalization is allowed. See 
    8 U.S.C. § 1427
    (a). Stanovsek’s
    case does not involve naturalization at all. These provisions say nothing about the meaning of
    “admitted” or “as an alien lawfully admitted for permanent residence” for provisions outside of
    Subchapter III of the INA, including the provisions at issue in this case.
    We recognize that the BIA’s interpretation of the Act would avoid a reading that appears
    to make little sense. Why would Congress distinguish between those who obtained lawful
    permanent resident status at the time of lawful entry and those who adjusted status later, for
    purposes of barring permanent residents who have committed aggravated felonies from
    discretionary hardship relief? Our inability to answer such a question does not, however, warrant
    expanding the scope of a statutory provision beyond a meaning as plainly limited as the one in
    question here. Absent a constitutional argument (none is made here), we must apply the clear
    meaning of the Act.
    We grant the petition for review and remand this matter to the Board for further
    proceedings consistent with this opinion.
    No. 13-3279                    Stanovsek v. Holder                                          Page 9
    _________________
    DISSENT
    _________________
    BOGGS, Circuit Judge, dissenting. Today’s majority adopts an interpretation of the
    immigration statute that it admits “make[s] little sense.” Majority Op. at 8. At issue is the
    phrase “an alien who has previously been admitted to the United States as an alien lawfully
    admitted for permanent residence.” The majority construes this phrase to mean that the alien
    must have been lawfully admitted for permanent residence at the time he or she first physically
    entered the United States. Thus, in the majority’s view, one can acquire the status of “an alien
    lawfully admitted for permanent residence,” but whether one is “admitted to the United States”
    as such is a question of historical fact. The majority concedes that it can discern no material
    difference between an alien who enters this country as a lawful permanent resident (“LPR”) and
    one who adjusts his status following entry.             
    Ibid.
       Nevertheless, under the majority’s
    interpretation of the statute, the latter is eligible for a § 212(h) waiver but the former is not.
    The BIA offers an alternative interpretation of the text. Under that interpretation, one can
    be treated as having been “admitted as” an LPR without having actually been admitted (i.e.,
    physically entered the country) as such. In other words, according to the BIA, when an alien
    adjusts his status, it is as if the alien were “admitted . . . as . . . an alien lawfully admitted for
    permanent residence.”
    For the government to prevail, it need not show that its interpretation of the statute is
    correct; rather, it need only show that the text is ambiguous on this point, and that the BIA’s
    interpretation was reasonable. See Scialabba v. Cuellar de Osorio, 
    134 S. Ct. 2191
    , 2203 (2014)
    (“[I]f the law does not speak clearly to the question at issue, a court must defer to the Board's
    reasonable interpretation, rather than substitute its own reading.”). The text of a statute is
    ambiguous if “it is subject to more than one reasonable interpretation.” N. Fork Coal Corp. v.
    Fed. Mine Safety & Health Review Comm’n, 
    691 F.3d 735
    , 740 (6th Cir. 2012). For the reasons
    explained below, the BIA’s alternative interpretation of the text is at least as plausible as that of
    the majority. What’s more, the BIA’s interpretation avoids the nonsensical result of treating
    LPRs differently under § 212(h) based on how they acquired their LPR status, which the
    No. 13-3279                   Stanovsek v. Holder                                     Page 10
    majority concedes ought to be immaterial. Because the BIA offers a reasonable interpretation of
    an ambiguous provision of the immigration laws, the court must defer to the BIA. I therefore
    respectfully dissent.
    “When an interpretation of a statutory text leads to a result that makes no sense, a court
    should at a minimum go back and verify that the textual analysis is correct.” Carr v. United
    States, 
    560 U.S. 438
    , 470 (2010) (Scalia, J., concurring). The majority’s textual analysis is
    flawed, or at least incomplete, because it ignores other uses of the phrase “admitted . . . as an
    alien lawfully admitted for permanent residence” elsewhere in the Immigration and Nationality
    Act. That phrase is also employed at 
    8 U.S.C. §§ 1151
    , 1186a, and 1186b. An analysis of the
    use of the phrase in those sections makes clear that an alien need not physically enter the country
    as an LPR to qualify as “an alien . . . admitted . . . as an alien lawfully admitted for permanent
    residence.” See 
    8 U.S.C. § 1182
    (h) (emphasis added). As a result, the interpretation of § 212(h)
    proffered by the BIA actually has strong support in the statutory text.
    The phrase is first used in § 1151(c), which deals with the “computation” of the number
    of family-sponsored immigrant visas that are to be made available in a given year. Part of that
    computation involves a reduction for the number of aliens who, among other things, were
    paroled into the country “in the second preceding fiscal year” and “did not depart . . . within 365
    days.” § 1151(c)(4). Under the following paragraph, however, certain exceptions aside, if any
    such alien “is subsequently admitted as an alien lawfully admitted for permanent residence, such
    alien shall not again be considered for purposes of paragraph (1),” which delineates the
    computation methodology.         § 1151(c)(5) (emphasis added).           Section 1151(b)(5) thus
    contemplates that an alien already in the United States, who entered lawfully, may be
    “subsequently admitted as an alien lawfully admitted for permanent residence.” In other words,
    since the “admitted as” language refers to aliens who are already here, that language cannot
    mean “physical entry.” And since it also refers to aliens who first entered lawfully, it cannot
    mean “first lawful entry.” Cf. Majority Op. at 4–5 (arguing that “adjustment of status is an
    ‘admission’” only for “those who had first entered the U.S. illegally and are only lawfully in the
    United States after completing an adjustment of status.”). Inserting the definition relied on by
    the majority, § 1151(c)(5) would effectively read, in pertinent part: an alien already in the United
    No. 13-3279                        Stanovsek v. Holder                                                Page 11
    States may “subsequently [enter into the United States after inspection and authorization by an
    immigration officer].” See Majority Op. at 3 (inserting that same definition in the statute
    disputed herein, § 1182(h)). That construction does not make sense because it anticipates the
    future entry of an alien who is already in the country. Here, the government’s “adjustment-as-
    admission” argument, as the majority refers to it, see id. at 5, is actually more compelling.
    Further supporting the BIA’s view is the fact that an alien’s adjustment of status is
    actually called an “admission” under the statute. Section 1255(b) provides: “Upon the approval
    of an application for adjustment made under subsection (a) of this section, 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 the adjustment of status is made.” (emphasis
    added). Thus, an alien who later adjusts his status to that of “an alien lawfully admitted for
    permanent residence” also acquires a date of “admission,” as opposed to a date of “adjustment.”
    See id.; § 1182(h) (providing that no waiver shall be granted if the alien has been convicted of an
    aggravated felony “since the date of such admission.”). Following the language of the statute, it
    would therefore be quite logical to say that such an alien was “admitted as” an LPR on the date
    that his application was approved. In other words, from a legal perspective, by adjusting his
    status, the alien effectively became an alien “admitted . . . as an alien lawfully admitted for
    permanent residence,” whether or not he physically entered the country in that capacity.
    The phrase “admitted as an alien lawfully admitted for permanent residence” is also used
    in §§ 1186a and 1186b of the Act, which make “conditional” the LPR status of “alien spouses
    and sons and daughters,” among others. According to his brief, Stanovsek “was admitted to the
    United States as a non-immigration visitor and later adjusted status to permanent residence under
    Section 245 of the Act, 8 U.S.C.§1255 [sic] in August 1990 based upon his marriage to Susan
    Stanovsek, a United States citizen.” Appellant’s Br. at 4. He therefore appears to qualify as an
    “alien spouse” whose LPR status is “conditional . . . subject to the provisions of [§ 1186a].”1
    Section 1186a(e) provides:
    1
    “The term ‘alien spouse’ means an alien who obtains the status of an alien lawfully admitted for
    permanent residence (whether on a conditional basis or otherwise)—(A) as an immediate relative (described in
    section 1151(b) of this title) as the spouse of a citizen of the United States.” § 1186a(h)(1). There is no indication
    that he and his spouse sought to have his conditional status removed pursuant to § 1186a(c).
    No. 13-3279                        Stanovsek v. Holder                                                  Page 12
    For purposes of subchapter III of this chapter, in the case of an alien who is in the
    United States as a lawful permanent resident on a conditional basis under this
    section, the alien shall be considered to have been admitted as an alien lawfully
    admitted for permanent residence and to be in the United States as an alien
    lawfully admitted to the United States for permanent residence.
    In other words, an alien spouse like Stanovsek not only is an LPR, but is “considered to have
    been admitted as” one.2 The language of § 1186b is identical. The point is that Congress
    accorded conditional LPRs the status of having been “admitted as aliens lawfully admitted for
    permanent residence”—regardless of whether the LPRs physically entered the country as LPRs
    or subsequently adjusted their status.
    The language in §§ 1186a(e) and 1186b(e) mirrors the § 212(h) waiver language, which
    prohibits granting a waiver to an alien subsequently convicted of an aggravated felony where that
    alien “has previously been admitted to the United States as an alien lawfully admitted for
    permanent residence.” See § 1182(h). In other words, § 1182(h) bars waivers for certain aliens
    “who ha[ve] previously been admitted” as LPRs, and § 1186a(e) provides that alien spouses like
    Stanovsek “shall be considered to have been admitted” as LPRs.
    The majority’s reading is thus not required by, and is in numerous places contraindicated
    by, the text of the statute. In addition, that reading leads to absurd results. The majority’s
    interpretation makes the congressional language impose harsher terms on aliens who enter
    completely legally (as aliens “lawfully admitted for permanent residence”) than on any other
    category of entrants, including not only those who enter, for example, as tourists and later adjust
    their status, but even those who sneak across the border; those who overstay their visas; or those
    who violate any other type of entry requirement—by lying about qualifications, past history, or
    affiliations, for example. On the majority’s interpretation, §212(h) waivers are in principle
    available to all such aliens—but not to those who entered legally and with the imprimatur of
    being “lawfully admitted for permanent residence.” The BIA’s alternative interpretation would
    2
    To be sure, these sections apply to subchapter III and concern “[t]reatment of [the] period for purposes of
    naturalization,” whereas the § 212(h) waiver is contained in subchapter II (“Immigration”). But the purpose of these
    sections is to clarify that, for purposes of naturalization, conditional LPRs should be treated no differently from non-
    conditional LPRs. In other words, the statutory language appears to assume that all non-conditional LPRs are
    “admitted as” such, and goes on to declare that conditional LPRs should likewise be treated as having been
    “admitted as” LPRs, notwithstanding their conditional status.
    No. 13-3279                   Stanovsek v. Holder                                     Page 13
    treat all LPRs alike for purposes of § 212(h), whether they entered as LPRs or adjusted their
    status. That reading is both textually and logically sound. As a result, the case for deference
    here is strong.
    As the Supreme Court recently reiterated, “judicial deference to the Executive Branch is
    especially appropriate in the immigration context.” Scialabba, 
    134 S. Ct. at 2203
    . “Under
    Chevron, the statute’s plain meaning controls, whatever the Board might have to say. But if the
    law does not speak clearly to the question at issue, a court must defer to the Board’s reasonable
    interpretation, rather than substitute its own reading.” 
    Ibid.
     (citations omitted).
    Here, the majority should recognize that its interpretation of the statute is not the only
    reasonable one. As a result, the court should have concluded that the statute was ambiguous.
    That is, it is unclear whether the phrase “an alien who has previously been admitted to the United
    States as an alien lawfully admitted for permanent residence” is meant simply to reference all
    LPRs or, alternatively, to carve out for harsher treatment a subset of LPRs who first physically
    entered the United States in that capacity. This case thus embodies the kind of “ambiguous
    provision in a complex statutory scheme” in which deference is appropriate. 
    Id. at 2213
    .
    Here, as in Scialabba, “the Board chose a textually reasonable construction consonant
    with its view of the purposes and policies underlying immigration law.” 
    Ibid.
     Given that the
    BIA’s construction is at least as viable as the majority’s, and especially given the majority’s own
    admission that its interpretation “make[s] little sense,” the court should have deferred to the
    Board. I therefore respectfully dissent.