BIA Finds § 212(h) Waiver Not Available to Overcome Bar to Cancellation of Removal

Matter of BUSTAMANTE, 25 I&N Dec. 564 (BIA 2011)

The bar to cancellation of removal in section 240A(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(1)(C) (2006), which precludes an alien who has been convicted of an offense under section 212(a)(2) of the Act, 8 U.S.C. § 1182(a)(2) (2006), from establishing eligibility for relief, may not be overcome by a waiver under section 212(h) of the Act.

The BIA concluded that INA §212(h) cannot waive the effect of a conviction for a controlled substance violation to overcome the bar to cancellation of removal under §240A(b)(1)(C), and dismissed the appeal.
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The Board of Immigration Appeals (BIA or Board) has held, in Matter of Bustamante, 25 I. & N. Dec. 564 (B.I.A. July 13, 2011), that the bar to cancellation of removal in INA § 240A(b)(1)(C) [8 USCA § 1229b(b)(1)(C)] (2006), which precludes an alien who has been convicted of an offense under INA § 212(a)(2) [8 USCA § 1182(a)(2)] (2006) from establishing eligibility for relief, may not be overcome by a waiver under INA § 212(h) [8 USCA § 1182(h)]. The respondent is a native and citizen of Mexico who entered the U.S. without having been admitted or paroled. In April 2008, he was convicted of possession of not more than 20 grams of marijuana in violation of Fla. Stat. § 893.13(6)(b). Removal proceedings were initiated against the respondent, charging him under INA § 212(a)(6)(A)(i) as an alien who is present in the U.S. without having been admitted or paroled. At a hearing before an immigration judge (IJ), the respondent conceded that he is removable and sought to apply for cancellation of removal under INA § 240A(b). The Department of Homeland Security (DHS) argued that the respondent was ineligible for that relief because he was barred under INA § 240A(b)(1)(C) as a result of his conviction for a controlled substance violation, which was an offense under INA § 212(a)(2)(A)(i)(II). The respondent requested a waiver under INA § 212(h) to overcome the statutory bar. The IJ determined that a waiver under INA § 212(h) would not eliminate the legal effect of the conviction for purposes of INA § 240A(b)(1)(C). The IJ found the respondent ineligible for cancellation of removal and ordered him removed from the U.S. The respondent has appealed, arguing that the IJ erred in denying the application for cancellation of removal. The respondent asserted that because cancellation of removal is a form of adjustment of status, an INA § 212(h) waiver should remove the legal effect of his conviction in the same manner that it waives a ground of inadmissibility that would otherwise render an alien ineligible for adjustment of status under INA § 245 [8 USCA § 1255] (2006).

In an opinion written by Board Member Linda S. Wendtland, in which Board Members Roger Pauley and Anne J. Greer joined, the Board began its analysis by setting out the relevant statutory provisions. It noted that INA § 240A(b)(1) states: The Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States if the alien-- (C) has not been convicted of an offense under section 212(a)(2), 237(a)(2), or 237(a)(3) of the Act Additionally, the Board set out the relevant language for INA § 212(a)(2)(A)(i): [A]ny alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of-- (II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. [§ ] 802)), is inadmissible.

The Board also made note of INA § 212(h), in relevant part: The Attorney General may, in his discretion, waive the application of subparagraphs (A)(i)(I), (B), (D), and (E) of subsection (a)(2) and subparagraph (A)(i)(II) of such subsection insofar as it relates to a single offense of simple possession of 30 grams or less of marijuana... (Emphasis added by the Board.)

The Board found that while INA § 212(h) is ambiguous with regard to its inadmissibility waiver provision, INA § 240A(b)(1)(C) was quite clear, requiring that an applicant demonstrate he was not convicted of an offense under INA § 212(a)(2). The Board opined that “while section 240A(b)(1)(C) clearly references the fact of a conviction, we conclude that section 212(h) is properly interpreted as not waiving the fact of a conviction, but instead as waiving only grounds of inadmissibility arising from a conviction, as well as from other actions involving criminal conduct.” The Board reasoned that it has historically held that INA § 212(h) has applied to overcoming grounds of inadmissibility that would otherwise preclude an alien from obtaining admission or adjustment of status under INA § 245. The Board also observed that, in contrast to this language, Congress has specifically exempted persons with convictions under INA § 212(a)(2) from being eligible for cancellation of removal by the language it used in crafting INA § 240A(b)(1)(C). The Board opined that the language “indicates that the bar does not depend in any way on a determination of inadmissibility or removability or ‘the application of’ a ground of inadmissibility. Instead, it directly references only convictions that are covered within the cross-referenced provisions.”

The Board also found support for its position in the fact that Congress used different language in another cancellation of removal provision, that found in INA § 240A(b)(2)(A)(iv), relating to the eligibility requirements for cancellation of removal for a battered spouse or child. There, Congress included language that related to inadmissibility and deportability, unlike in the provision at issue in this case.

Additional support for its position was found in a recent decision by the U.S. Court of Appeals for the Seventh Circuit, Barma v. Holder, 640 F.3d 749 (7th Cir. 2011). In Barma, the Seventh Circuit found that, based on language in INA § 240A(b)(1)(C), “the alien, who was convicted of possession of drug paraphernalia, was convicted of an offense under section 212(a)(2) and was therefore ineligible for cancellation of removal based on his conviction.” That court concluded that the waiver in § 212(h) was applicable to grounds of inadmissibility but not to cancellation of removal. The Seventh Circuit relied in part on a decision by the U.S. Court of Appeals for the Ninth Circuit, Sanchez v. Holder, 560 F.3d 1028, 1032 (9th Cir. 2009), which concluded that “[a] statute giving the Attorney General discretion to grant relief from inadmissibility does not give the Attorney General discretion to grant relief from removal.”

The Board concluded that the provisions for cancellation of removal require that the seeker be free from one of the enumerated convictions and that the convictions are not waivable. Further, it found that § 212(h)'s waiver applies only to waive the inadmissibility, not the actual conviction. The Board concluded:

"As an alien who was convicted of a controlled substance violation, the respondent has been “convicted of an offense under” section 212(a)(2)(A)(i)(II) of the Act. He is therefore barred from establishing eligibility for cancellation of removal under section 240A(b)(1)(C) of the Act. We agree with the Immigration Judge that a section 212(h) waiver is not available to overcome that bar. Accordingly, the respondent's appeal will be dismissed. Given our disposition, we need not address the remaining arguments presented on appeal."

Ninth Circuit Finds Son of U.S. Citizen Remains Such After Citizen's Death and Remains Eligible for § 237(a)(1)(H)(i) Waiver.

The U.S. Court of Appeals for the Ninth Circuit, in reviewing the decision of the Board of Immigration Appeals (BIA or Board) in Matter of Federiso, 24 I. & N. Dec. 661 (B.I.A. Oct. 23, 2008), has held that the Board erred in holding that the son of a U.S. citizen was not eligible for a waiver of inadmissibility under INA § 237(a)(1)(H)(i) [8 USCA § 1227(a)(1)(H)(i)] because his citizen mother died before a decision was rendered on his waiver application, Federiso v. Holder, 2010 WL 1980763 (9th Cir. May 19, 2010).

The petitioner is a Filipino national who entered the U.S. as a lawful permanent resident in November 1986 as the unmarried son of a U.S. citizen (his mother). Fifteen years later, removal proceedings were initiated against him because he had falsely represented that he was unmarried when he applied for his visa, rendering him inadmissible and therefore removable under INA § 212(a)(6)(C)(i) [8 USCA § 1182(a)(6)(C)(i)] for having procured his visa by fraud or willful misrepresentation. The petitioner requested relief under INA § 237(a)(1)(H)(i) which gives an immigration judge (IJ) the discretion to waive the removal of an immigrant who procured a visa through willful misrepresentation if the immigrant “is the spouse, parent, *1050 son, or daughter” of a U.S. citizen or lawful permanent resident. The removal proceedings dragged on for years, and, after the proceedings had been initiated but before the hearing on the petitioner's request for § 237(a)(1)(H)(i) relief, his mother died. At the hearing, the petitioner and the Department of Homeland Security (DHS) disagreed about whether the petitioner was still eligible to apply for a § 237(a)(1)(H)(i) waiver. The IJ held that he was since he “continues to be the son of a United States citizen” after the death of his U.S.-citizen mother. The IJ then examined a long list of equities in the petitioner's favor and granted the waiver. DHS appealed, and the BIA, agreeing with DHS, held that “to be eligible for a waiver of removal” under § 237(a)(1)(H)(i), “an alien must establish a qualifying relationship to a living relative” (emphasis added). Because the petitioner's mother was no longer living, the BIA held that he was no longer eligible to apply for the waiver. The BIA therefore vacated the IJ's decision and ordered the petitioner removed to the Philippines. The petitioner sought review by the court of appeals.

The court acknowledged that, where there is ambiguity in the statute, it must defer to the agency's interpretation, but found the text of § 237(a)(1)(H)(i) plain and unambiguous and the Board's interpretation clearly contrary to the plain meaning of that text.

INA § 237(a)(1)(H) provides that:

The provisions of this paragraph relating to the removal of aliens within the United States on the ground that they were inadmissible at the time of admission as aliens described in section 212(a)(6)(C)(i), whether willful or innocent, may, in the discretion of the Attorney General, be waived for any alien (other than an alien described in paragraph (4)(D)) who-- (i) (I) is the spouse, parent, son, or daughter of a citizen of the United States or of an alien lawfully admitted to the United States for permanent residence; and (II) was in possession of an immigrant visa or equivalent document and was otherwise admissible to the United States at the time of such admission except for those grounds of inadmissibility specified under paragraphs (5)(A) and (7)(A) of section 212(a) which were a direct result of that fraud or misrepresentation.

This text, the court said, “clearly states that the son of a citizen of the United States may be eligible for a waiver of removal.” Since neither DHS not the BIA disputed that the petitioner was the son of a U.S. citizen, the court opined that that alone was enough to resolve the case. However, the court also pointed out that, while the Board interpreted the statutory provision to apply only to a living citizen, “this is not what the statute says.”

The court also found that the BIA erred in relying on two Ninth Circuit decisions which held that the purpose of the waiver was to promote family unity and that waivers should not be granted in instances in which that purpose would not be furthered: Chung Wood Myung v. District Director of U.S. Immigration & Naturalization Service, 468 F.2d 627 (9th Cir. 1972) (finding that the waiver should not be granted for the father where the U.S. citizen child lived in Korea with his mother), and Kalezic v. Immigration and Naturalization Service, 647 F.2d 920 (9th Cir. 1981) (finding that, where the alien was divorced from his U.S. citizen wife and thus family unity was not applicable, the waiver would not be granted). The court found Kalezic of little value in adjudicating the instant case since it involved a marital relationship, not “the wholly distinct relationship between parent and child.” While a husband ceases to be his wife's spouse upon divorce, the court pointed out that “[A] child never ceases to be his mother's son. He always is her son, even after her death.”

The court found Myung more relevant since it involved a parent-child relationship but explained that, in the decades since it issued Myung and Kalezic, both the statutory text at issue and the role of the interpreter have changed. The court pointed out that, when it decided these two cases, it looked to the purpose of the statute rather than to its language but that now it is governed by Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), and its progeny, and, unless the “statute is silent or ambiguous with respect to the specific issue” before the court, the court's work is done. Here, the court reiterated, the statutory language at issue is plain: the son of a U.S. citizen may be eligible for a waiver. Also, the court noted, when Myung and Kalezic were decided, the waiver was mandatory whereas it is now discretionary. Thus, the court said, whether an alien is eligible for a waiver is a question of statutory interpretation fit for judicial review whereas whether issuing § 237(a)(1)(H) relief to a particular alien is consistent with the statute's underlying purpose is a case-by-case policy determination that the statutory text commits not to the courts but to the discretion of the Attorney General and his designee the IJ. Neither the BIA nor the court may further its preferred interpretation of Congress' intent by misreading or adding to the statutory eligibility requirements that Congress has laid out quite clearly, the court concluded. Accordingly, the court granted the petition for review and remanded the matter to the Board for further proceedings.
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BIA Finds Fraud Waiver Applicant’s Qualifying Relative Must be Living to Establish Eligibility.

BIA finds that the purpose of a fraud waiver under INA §237(a)(1)(H)(i)(I) is clear from the statutory language and court interpretations - to unite aliens with their living USC or LPR family members. Concludes that because the waiver applicant’s mother is deceased, he lacks the qualifying relative. Matter of Federiso, 24 I&N Dec. 661, (BIA 2008). To be eligible for a waiver of removal under INA § 237(a)(1)(H)(i) [8 USCA § 1227(a)(1)(H)(i)] (2006), an alien must establish a qualifying
relationship to a living relative, the Board of Immigration Appeals (BIA or Board) has held. Matter of Federiso, 24 I. & N. Dec. 661 (B.I.A. Oct. 23, 2008).