Gallimore v. Attorney General of the United States

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 08-3379
_____________

EARL WOODROW GALLIMORE,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent
_______________

On Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A72-749-146
Immigration Judge: Margaret R. Reichenberg
________________

Argued June 10, 2010

Before: AMBRO, CHAGARES, and GREENAWAY, JR.,
Circuit Judges.

(Filed: August 20, 2010)

_________________

Nita Dobroshi, Esq. (Argued)
Spar & Bernstein
225 Broadway, Ste. 512
New York, NY 10007
Attorney for Petitioner
Aliza B. Alyeshmerni, Esq.
Sharon M. Clay, Esq. (Argued)
Allen W. Hausman, Esq.
Thomas W. Hussey, Esq.
United States Department of Justice
Office of Immigration Litigation, Civil Division
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Attorneys for Respondent
_______________

OPINION
_______________

CHAGARES, Circuit Judge.

Earl Woodrow Gallimore petitions this Court to review a
final order of removal issued by the Board of Immigration Appeals
(“BIA”). After finding Gallimore removable, an Immigration
Judge (“IJ”) concluded that he is ineligible by law to receive a
discretionary waiver of removal. Gallimore appealed to the BIA,
challenging only the IJ’s waiver determination. The BIA affirmed
on alternative grounds that it raised sua sponte, and this petition
followed. We will grant the petition and remand to the BIA for
further proceedings.

I.

Gallimore is a 48-year-old native and citizen of Jamaica. He
entered the United States on August 7, 1993 pursuant to a valid
non-immigrant visa. On September 25, 1993, while driving on a
New Jersey roadway with a female companion, police officers
stopped Gallimore and recovered five pounds of marijuana from
the vehicle. Gallimore was detained and questioned, and although
he claims that he did not know he had been formally arrested, he
appears to have spent three or four days in custody. Joint
Appendix (“JA”) 406. On December 3, 1993, a grand jury returned
a sealed indictment against Gallimore, charging him with, inter
alia, possession with intent to distribute five pounds or more of

2
marijuana, in violation of N.J. Stat. Ann. §§ 2C:35-5a(1) and
2C:35-5b(10)(b). JA 408. Gallimore claims that he was not aware
of the indictment at the time it was returned.

On January 12, 1994, Gallimore married a United States
citizen. On April 14, 1994, he and his wife filed a joint petition
and application for an adjustment of status, seeking that he be
reclassified as a lawful permanent resident (“LPR”). On the Form
I-485 that Gallimore completed, he answered “no” to the following
question: “Have you ever, in or outside the U.S. . . .[,] been
arrested, cited, charged, indicted, fined, or imprisoned for breaking
or violating any law or ordinance . . . ?” JA 403. He answered
similarly during an interview in support of the application. On July
6, 1994, the Immigration and Naturalization Service (“INS”)
approved the application and adjusted Gallimore’s status to LPR on
a conditional basis. See 8 U.S.C. § 1186a.1

On November 13, 1994, Gallimore was arrested on the
still-pending indictment. He claims that this was the first time he
learned of the drug charges against him. Though he originally
pleaded not guilty, Gallimore ultimately reversed course and
entered a guilty plea on March 10, 1995. JA 406-07. He was
sentenced to time served – six days, which included the three or
four days he appears to have served after being detained in
September 1993. JA 406.

On April 1, 1996, Gallimore and his wife filed a petition to
have the conditions on his LPR status removed. JA 399-400. On
the Form I-751 filed in support of the petition, he answered “no”
to the following question: “Since becoming a conditional resident,
have you ever been arrested, cited, charged, indicted, convicted,
fined, or imprisoned for breaking or violating any law or
ordinance[?]” JA 400. Gallimore claims that his wife completed
the form without knowing about his conviction. He admits,
however, that he signed the form. The INS approved the petition

1
For ease of reference, we refer hereafter to aliens whose
status is adjusted pursuant to § 1186a as “conditional LPRs” or
“conditional permanent residents.”

3
on August 22, 1996. JA 399.

Five years later, on December 17, 2001, Gallimore applied
for naturalization. JA 395-98. For the first time, he disclosed on
the citizenship application his 1993 arrest, his 1995 conviction, and
his sentence. JA 397. On July 11, 2005, because of the conviction
and his previous failure to disclose it, Gallimore’s application for
citizenship was denied for poor moral character.

On April 3, 2006, United States Citizenship and
Immigration Services (“CIS”) issued Gallimore a Notice to Appear
(“NTA”) (and later supplemented it), charging him as removable
pursuant to three statutory provisions of the Immigration and
Nationality Act (“INA”), codified at 8 U.S.C. § 1101, et seq. First,
the NTA charged Gallimore as removable under 8 U.S.C. §
1227(a)(1)(A) for being, at the time of re-entry or adjustment of
status, within a class of inadmissible aliens. Specifically, the NTA
alleged that Gallimore was inadmissible under 8 U.S.C. §
1182(a)(6)(C)(i) for having engaged in fraud or willful
misrepresentation of a material fact to obtain admission,
documentation, or other benefit under the INA. Second, the NTA
charged Gallimore as removable under § 1227(a)(2)(A)(iii) for
having been convicted of an aggravated felony. Third, the NTA
charged Gallimore as removable under § 1227(a)(2)(B)(i) for
having been convicted of a qualifying controlled substance
violation. JA 457.2

Regarding the first charge of removability, the amended
NTA alleged:

You procured your admission, visa, adjustment, or
other documentation or benefit by fraud or by
willfully misrepresenting a material fact, to wit: You
failed to admit, on your I-485 application that was
submitted on 4/14/94 and while being questioned

2
Gallimore does not dispute that his conviction constitutes
both an aggravated felony and a qualifying controlled substance
violation.

4
 under oath by a Service Officer on 6/30/94, and on
your I-751 form that was executed by you on April
1, 1996 . . . , to your prior drug trafficking activities
that occurred on December 3, 1993 [3] as is evidenced
by an indictment against you and your admission of
guilt before the New Jersey Superior Court to a
charge in that indictment. Those misrepresentations
were made by you in order to have the Service grant
you permanent resident status.

JA 414. Gallimore denied removability and the factual allegations
supporting the charges. He also applied for cancellation of
removal, waiver of removal, and termination or closure of the
proceedings. The IJ held five days of removal proceedings, during
which Gallimore testified. Among other things, he claimed that he
had been detained for only one and one-half or two hours on
September 25, 1993, and that he did not understand at the time that
he had been arrested. JA 150-51.

In an oral opinion, the IJ found that the Government had
proved by clear and convincing evidence that Gallimore was
removable on all three charged grounds. JA 83-84. With respect
to the charge of removability based on Gallimore’s
misrepresentations, the IJ found that he had willfully failed to
disclose his 1993 arrest on both the Form I-485 and the Form
I-751, and during his June 30, 1994 interview. JA 84. She found
further that Gallimore had willfully failed to mention the
conviction on the Form I-751 submitted to remove the conditions
on his LPR status. Id. The IJ rejected Gallimore’s intimation “that
anyone other than [himself] bore responsibility for these
omissions.” JA 85. The IJ concluded that Gallimore had made the
misrepresentations “so he could maintain his eligibility for these
application[s] because clearly if he had revealed th[e] conviction
he would not have been eligible for the benefits he was seeking.”
Id. She “was not persuaded by [Gallimore’s] self-serving

3
This date is obviously incorrect. December 3, 1993 is the
date the indictment was returned. The correct date of Gallimore’s
drug activities is September 25, 1993. JA 408.

5
testimony that he was the innocent dupe in all of these filings with
false information[.]” JA 88.

Turning to Gallimore’s requested bases for relief from
removal, the IJ denied termination and administrative closure of the
removal proceedings. JA 86-87. She also pretermitted his
application for cancellation of removal, as 8 U.S.C. §
1229b(b)(1)(C) clearly rendered him ineligible for such relief. JA
87-88. Finally – and central to this petition – the IJ held that
Gallimore was not eligible for a waiver under former INA § 212(c)
“because he did not obtain his permanent residence without
willfully misrepresenting [a] material fact.” JA 87. Citing Matter
of T---, 6 I. & N. Dec. 136 (BIA 1954), the IJ concluded that
Gallimore had never been “‘lawfully’ admitted as a lawful
permanent resident” – a necessary prerequisite for § 212(c) relief
– because he had obtained his original status adjustment through
willful misrepresentation. JA 87. The IJ therefore denied the
waiver application and issued an order of removal. JA 78-79.

Gallimore timely appealed to the BIA, challenging only the
IJ’s waiver analysis. The BIA affirmed the IJ’s order on alternative
grounds and dismissed the appeal. JA 2-3. The BIA agreed with
the IJ’s ultimate conclusion that Gallimore had not been “lawfully
admitted for permanent residence” under § 212(c), and that he was
therefore ineligible for a waiver. But it did so on the basis that his
1995 conviction alone precluded such relief. Without referencing
Gallimore’s initial 1994 status adjustment, the BIA explained:

[T]he respondent’s 1995 drug conviction clearly
rendered him inadmissible to the United States under
[8 U.S.C. § 1182(a)(2)(A)(i)(II)] as it then existed.
This inadmissibility rendered the respondent
statutorily ineligible for adjustment of status because
it precluded him from demonstrating that he was
“admissible to the United States for permanent
residence,” as required by [8 U.S.C. § 1255(a)(2)] .
. . . Thus, although the respondent’s status was
adjusted to that of a lawful permanent resident in
1996 in compliance with procedural formalities, he
was never “lawfully” admitted for permanent

6
 residence within the meaning of former [§] 212(c) of
the Act because at the time of adjustment he could
not satisfy the substantive legal requirements
associated with that status.

JA 2-3. In support of its explanation, the BIA cited decisions from
the Courts of Appeals for the Second, Fifth, Eighth, Ninth, and
Eleventh Circuits, as well as two of its own decisions. JA 3.
Given its holding, the BIA specifically declined to review the IJ’s
analysis regarding Gallimore’s alleged misrepresentations, again
omitting mention of his 1994 status adjustment:

Because the respondent’s 1995 drug conviction was
sufficient, without more, to preclude his 1996
adjustment of status from being considered “lawful”
within the meaning of former [§] 212(c), we need
not decide at this time whether, at the time of his
adjustment, the respondent was also inadmissible for
willfully misrepresenting a material fact.

JA 3. Gallimore then filed this petition for review.4

4
We have jurisdiction to review the BIA’s final order of
removal under 8 U.S.C. § 1252. The issues of statutory
interpretation presented to us are pure questions of law, and we
review them de novo, subject to applicable principles of agency
deference. See Valansi v. Ashcroft, 278 F.3d 203, 207-09 (3d Cir.
2002) (discussing principles of deference under Chevron U.S.A.,
Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837
(1984)). Though the BIA agreed with the IJ’s ultimate legal
conclusion, it did so for expressly different reasons. Accordingly,
because it did not adopt or defer to the IJ’s findings or analysis, we
review only the BIA’s decision. Kang v. Att’y Gen., __ F.3d __,
__, No. 08-4790, 2010 U.S. App. LEXIS 13958, at *11 (3d Cir.
July 8, 2010); Voci v. Gonzales, 409 F.3d 607, 612 (3d Cir. 2005);
Abdulai v. Ashcroft, 239 F.3d 542, 549 n.2 (3d Cir. 2001).

7
 II.

Gallimore argues that the BIA erred when it held that his
conviction alone rendered him ineligible for discretionary relief
under INA § 212(c). Because the BIA’s analysis in all likelihood
rests on an historically inaccurate premise, it cannot stand.
Alternatively, to the extent that one can glean from the BIA’s
opinion an interpretation theoretically supporting its disposition,
we hold that the BIA’s opinion fails adequately to explain its
reasoning and, in any event, appears incorrect as a matter of law.
Whatever the case, the BIA’s opinion is insufficient to support its
dismissal of Gallimore’s appeal. We will therefore grant the
petition and remand the matter to the BIA for further proceedings.

A.

An alien may obtain LPR status under the INA by virtue of
his marriage to a citizen of the United States. Pursuant to 8 U.S.C.
§ 1186a, that status is “conditional” for the first two years of the
marriage. See Vasquez v. Holder, 602 F.3d 1003, 1006 (9th Cir.
2010); Cabrera-Perez v. Gonzales, 456 F.3d 109, 111 (3d Cir.
2006) (per curiam). Subparagraph (a)(1) provides that “an alien
spouse . . . shall be considered, at the time of obtaining the status
of an alien lawfully admitted for permanent residence, to have
obtained such status on a conditional basis subject to the provisions
of this section.” 8 U.S.C. § 1186a(a)(1). The purpose of this
scheme is obvious: to ferret out sham marriages entered into for
the purpose of obtaining entry into the United States. See
Cabrera-Perez, 456 F.3d at 111; see also Carpio v. Holder, 592
F.3d 1091, 1094 (10th Cir. 2010) (“Congress passed the
Immigration Marriage Fraud Amendments (IMFA) [containing §
1186a] . . . , which sought to deter fraud by aliens seeking to
acquire lawful permanent residence in the United States based on
marriage to United States citizens or lawful permanent resident
aliens.”); Choin v. Mukasey, 537 F.3d 1116, 1120 (9th Cir. 2008)
(“The purpose of the IMFA was ‘to deter immigration-related
marriage fraud and other immigration fraud.’” (citation omitted)).

Under § 1186a, if at any time before the second anniversary
of the alien having obtained conditional LPR status, the Attorney

8
General learns that the marriage was fraudulent or has been
annulled or terminated, the Attorney General “shall terminate the
permanent resident status of the alien . . . as of the date of the
determination.” 8 U.S.C. § 1186a(b)(1). Termination of
conditional permanent resident status renders the alien removable.
8 U.S.C. § 1227(a)(1)(D)(i).

In order to have the conditions removed, the alien and
citizen-spouse must file a joint petition stating “that the marriage,
in sum and substance, was not entered into for the purpose of
gaining [the] alien’s entry as an immigrant.” Cabrera-Perez, 456
F.3d at 111; see also 8 U.S.C. § 1186a(c)(1)(A), (d)(1). This
petition must be filed during the ninety-day period before the
second anniversary of the alien’s admission as a conditional LPR.
8 U.S.C. § 1186a(d)(2)(A). The statute requires the alien and the
citizen-spouse to appear for an interview with CIS, but the
Attorney General may waive that requirement. See 8 U.S.C. §
1186a(c)(1)(B), (d)(3); 8 C.F.R. § 216.4(b). Upon verification that
the facts in the petition are true, “the Attorney General shall . . .
remove the conditional basis of the [alien’s status] effective as of
the second anniversary of the alien’s obtaining the status of lawful
admission for permanent residence.” 8 U.S.C. § 1186a(c)(3)(B);
see also Vasquez, 602 F.3d at 1006; Choin, 537 F.3d at 1118-19.5

If a conditional LPR fails to file a timely petition for
removal of the conditions, or fails to appear for an un-waived
interview, the Attorney General ordinarily must terminate the
alien’s conditional LPR status as of the second anniversary that
status was obtained. 8 U.S.C. § 1186a(c)(2); see also Vasquez, 602
F.3d at 1006. Section 1186a contains no provision, however,
requiring the Attorney General to terminate an alien’s conditional
status upon the commission of a criminal offense. Additionally,
the “conditions” imposed by § 1186a – aside from the marriage-
related formalities to which we have referred – neither restrict the
rights nor expand the obligations of a conditional LPR. The
Attorney General, in fact, has promulgated regulations stating that,

5
The Attorney General has never challenged Gallimore’s
marriage as fraudulent.

9
except where otherwise specified, conditional LPRs enjoy the same
rights and privileges as those LPRs whose status is not conditional.
See generally 8 C.F.R. §§ 216.1-216.6.

B.

Before its repeal by the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L. No.
104-208, 110 Stat. 3009-546, INA § 212(c) permitted certain
immigrants found deportable on the basis of a criminal offense to
apply for discretionary relief – known as “waiver” – from
deportation. See Ponnapula v. Ashcroft, 373 F.3d 480, 486 (3d
Cir. 2004). Section 212(c) stated in pertinent part: “Aliens lawfully
admitted for permanent residence who temporarily proceeded
abroad voluntarily and not under an order of deportation, and who
are returning to a lawful unrelinquished domicile of seven
consecutive years, may be admitted in the discretion of the
Attorney General . . . .” 8 U.S.C. § 1182(c) (1994). Though this
provision literally applied only to exclusion proceedings when
LPRs returned from abroad, judicial and administrative
interpretations extended its protection to deportation proceedings
as well. See INS v. St. Cyr, 533 U.S. 289, 295 (2001); Atkinson v.
Att’y Gen., 479 F.3d 222, 225-26 (3d Cir. 2007); Matter of Silva,
16 I. & N. Dec. 26, 30 (BIA 1976).

Despite IIRIRA’s repeal of § 212(c), the Supreme Court
held in St. Cyr that discretionary relief under § 212(c) “remains
available for aliens . . . whose convictions were obtained through
plea agreements and who . . . would have been eligible for § 212(c)
relief at the time of their plea under the law then in effect.” 533
U.S. at 326. It is undisputed that Gallimore satisfies the first
portion of this standard, as he pleaded guilty before IIRIRA
became effective. But to be eligible for a waiver, Gallimore must
also have been “lawfully admitted for permanent residence.” This
is the overarching issue before us.

C.

An alien who becomes an LPR through fraud has not been
“lawfully admitted” for § 212(c) purposes. Matter of T---, 6 I. &

10
N. Dec. at 137-38. This is so because “[t]he term ‘lawfully’
denotes compliance with substantive legal requirements, not mere
procedural regularity . . . .” In re Longstaff, 716 F.2d 1439, 1441
(5th Cir. 1983); see also Mejia-Orellana v. Gonzales, 502 F.3d 13,
16 (1st Cir. 2007) (“BIA precedent holds that aliens are ineligible
for [waiver] . . . where they have acquired permanent resident
status by fraud or misrepresentation, because they have not been
lawfully admitted for permanent residence.” (citing In re
Koloamatangi, 23 I. & N. Dec. 548, 551 (BIA 2003))); Biggs v.
INS, 55 F.3d 1398, 1401 (9th Cir. 1995).

Thus, an alien whose status has been adjusted to LPR – but
who is subsequently determined to have obtained that status
adjustment through fraud – has not been “lawfully admitted for
permanent residence” because the “alien is deemed, ab initio, never
to have obtained [LPR] status.” Koloamatangi, 23 I. & N. Dec. at
551. Such an alien, therefore, is ineligible for § 212(c) relief. As
set out above, the IJ in this case found that Gallimore had obtained
his LPR status by willfully misrepresenting or omitting his arrest
and conviction on multiple occasions, and therefore concluded that
he was ineligible for § 212(c) relief because his 1994 status
adjustment had not been “lawful.”

The reasoning of Matter of T--- and Koloamatangi has been
extended to situations outside of fraud and misrepresentation. Cf.
Koloamatangi, 23 I. & N. Dec. at 550 (“[T]he term ‘lawfully
admitted for permanent residence’ d[oes] not apply to aliens who
had obtained their permanent resident status by fraud, or had
otherwise not been entitled to it.” (emphasis added)). Where an
alien obtains LPR status through administrative oversight – despite
being ineligible for that status for one reason or another – several
of our sister courts of appeals have deferred to BIA decisions
concluding that the alien has not been “lawfully admitted for
permanent residence.” 6 As we have explained, the BIA affirmed

6
See Shin v. Holder, 607 F.3d 1213, 1217 (9th Cir. 2010)
(“Although the facts of . . . Koloamatangi involve[d] acts of
personal fraud or misrepresentation, [its] holding[] broadly deem[s]
all grants of LPR status that were not in substantive compliance

11
the IJ’s decision on this alternative basis. Specifically, it held that
even though Gallimore’s application for status adjustment had been
approved in 1996, his 1995 conviction rendered him legally
ineligible for it because the conviction rendered him inadmissible
at that time. Thus, reasoned the BIA, irrespective of any material
misrepresentations he may or may not have made, Gallimore’s
1996 status adjustment had not been “lawful,” thereby destroying
his eligibility for § 212(c) relief.

Gallimore does not challenge – and we are in complete

with the immigration laws to be void ab initio.”); Walker v. Holder,
589 F.3d 12, 20-21 (1st Cir. 2009) (holding that where alien’s
status was procured through fraud of third parties and without
petitioner’s knowledge or participation, “it is not determinative that
Petitioner himself intended to commit fraud in obtaining admission
to the United States for permanent residence” because he had not
been “lawfully admitted” in any event); De La Rosa v. DHS, 489
F.3d 551, 554-55 (2d Cir. 2007) (per curiam) (deferring to BIA’s
conclusion that petitioner had not been “lawfully admitted” where
she had not been present in the United States in 1982, yet had been
admitted pursuant to an amnesty program requiring such presence);
Savoury v. Att’y Gen., 449 F.3d 1307, 1313 (11th Cir. 2006) (“The
adverb ‘lawfully’ requires more than the absence of fraud. It
requires consistency with all applicable law.”); Arellano-Garcia v.
Gonzales, 429 F.3d 1183, 1187 (8th Cir. 2005) (“We conclude that
the agency’s interpretation of ‘lawful’ . . . is reasonable and applies
not only where there has been fraud in the procurement of the
adjusted status, but also to a situation where the alien was not
entitled to an adjustment but received it by a negligent mistake of
the agency.”); Monet v. INS, 791 F.2d 752, 753-54 (9th Cir. 1986)
(concluding that petitioner’s prior conviction would have rendered
him ineligible for adjustment to LPR at the time his status was
adjusted, and thus that he had not been “lawfully admitted” to the
United States); In re Longstaff, 716 F.2d at 1441 (“[A] narrow
reading of the term ‘lawfully admitted’ distorts its meaning.
Admission is not lawful if it is regular only in form. The term
‘lawfully’ denotes compliance with substantive legal requirements,
not mere procedural regularity . . . .”).

12
agreement with – the fundamental reasoning of the fraud line of
cases (Koloamatangi and Matter of T---) and the application of that
reasoning to what we shall refer to as “non-fraud cases.” The
agency’s determination that one does not “lawfully” obtain LPR
status through fraud is certainly a reasonable interpretation of §
212(c) and that statutory analysis is entitled to deference. Further,
we discern no principled distinction between (1) finding a status
adjustment not “lawful” because the applicant procured it through
fraud; and (2) finding a status adjustment not “lawful” because the
applicant was not legally entitled to it for any other reason.

Accordingly, we defer to the BIA’s interpretation of §
212(c) that “an alien whose status has been adjusted to lawful
permanent resident but who is subsequently determined in an
immigration proceeding to have originally been ineligible for that
status has not been ‘lawfully admitted for permanent residence.’”
De La Rosa v. DHS, 489 F.3d 551, 554 (2d Cir. 2007) (per curiam)
(citing Koloamatangi, 23 I. & N. Dec. at 551). In doing so, we join
“the decisions of our sister circuits, which have uniformly adopted
the same definition of the phrase ‘lawfully admitted for permanent
residence’ either by finding that the phrase is unambiguous or by
granting deference to the BIA’s interpretation.” Id. (citations
omitted).

That is not, however, the end of the matter. Though
Gallimore does not attack the reasoning of the non-fraud cases, he
challenges their applicability here. His argument is one of timing.
Cf. id. at 555 (“[T]o be ‘lawfully admitted for permanent
residence’ an alien must have complied with the substantive legal
requirements in place at the time she was admitted for permanent
residence.” (emphasis added)). Factually, this case is unlike any
other we have cited, because here there are two points in time
potentially relevant to whether and when Gallimore was “lawfully
admitted for permanent residence.” These two dates, moreover,
straddle the date of the potentially disqualifying conviction. Upon
marrying a United States citizen in 1994, Gallimore “obtain[ed] the
status of an alien lawfully admitted for permanent residence,” yet
that status by law was “considered . . . to [be] . . . on a conditional
basis” until the conditions were removed in 1996. 8 U.S.C. §
1186a(a)(1). In the interim, in 1995, Gallimore was convicted on

13
the drug charges.

The question, then, is in what year was Gallimore’s status
adjusted (properly or improperly) to that of “lawfully admitted for
permanent residence”? Was it in 1994, when he first was admitted
as a conditional permanent resident? Or was it in 1996, when the
conditions were removed? If 1994 is the relevant date, then
Gallimore would not be ineligible for § 212(c) relief for the reasons
stated by the BIA. This would be so because he had not yet been
convicted in 1994 and, as of that date, he otherwise appeared to be
in compliance with all relevant legal requirements necessary to
obtain permanent resident status.7 Conversely, if 1996 is the
relevant date, then the BIA’s application of the non-fraud cases
will carry the day.

D.

The INA defines the phrase “lawfully admitted for
permanent residence” as 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). 8 In support

7
The obvious caveat to this is that even if 1994 is
determined to be the relevant date, that would still leave for
resolution the IJ’s analysis regarding Gallimore’s alleged
misrepresentations. We take no position on the IJ’s analysis at this
time.
8
A regulation promulgated pursuant to this provision
contains the identical definition, but adds that “[s]uch status
terminates upon entry of a final administrative order of exclusion,
deportation, or removal.” 8 C.F.R. § 1.1(p). Seizing on the
regulation’s additional language, Gallimore argues that his status
could only have been changed by a final order of removal.
Gallimore Br. at 18. The BIA rejected this very argument in
Koloamatangi, explaining that the extra verbiage was intended to
clarify only that “an alien’s permanent resident status, which has
been lawfully obtained, terminated with the entry of a final
administrative order of deportation,” but that the lawfulness of the

14
of the BIA’s disposition, the Attorney General argues that
Gallimore cannot be said to have been accorded the privilege of
residing “permanently” in the United States in 1994 because his
status was then subject to “conditions.”

Before addressing the Attorney General’s particular
argument in support of the BIA’s opinion, we focus on the opinion
itself. The BIA applied the non-fraud cases sua sponte, and in
doing so did not explain why a conditional permanent resident has
not met – at the time conditional status initially is obtained – §
1101(a)(20)’s definition of “lawfully admitted for permanent
residence.” In fact, what little explanation the BIA did provide
strongly suggests that it did not consider the issue at all. Instead,
it appears far more likely that the BIA simply overlooked the fact
that Gallimore’s status initially had been adjusted pursuant to §
1186a in 1994. Consequently, we believe the BIA failed to
recognize the relevance of that date, and that that failure tainted its
entire legal analysis.

The BIA twice noted – without elaboration and in contrast
to the IJ’s explicit recognition that Gallimore’s “status was adjusted
to that of lawful permanent resident on July 6, 1994” – that his
status was adjusted in 1996. More importantly, the BIA did not so
much as mention § 1186a. We would expect that if the BIA was

status did not turn on when the alien physically departed the
country. 23 I. & N. Dec. at 550 (emphasis added). The BIA
explained that “[t]here is no indication . . . the final sentence [in the
regulation] was intended to undermine the long-standing decisions
holding that an alien was not ‘lawfully’ admitted for permanent
resident status if, at the time such status was accorded, he or she
was not entitled to it.” Id. Accordingly, “the issue of whether an
LPR retains her status until the conclusion of removal proceedings
is distinct from whether she was ‘lawfully admitted’ in the first
place so that she may seek relief from removal . . . .” Shin, __ F.3d
at __, 2010 U.S. App. LEXIS 11933, at *10; accord Savoury, 449
F.3d at 1314. While Gallimore’s argument is off the mark, the
question of when his status was adjusted to “lawfully admitted for
permanent residence” nonetheless remains.

15
interpreting whether an alien admitted under § 1186a is
categorically ineligible for a waiver during the two-year conditional
period, the agency would have at least cited § 1186a. Instead, the
BIA cited only 8 U.S.C. § 1255(a)(2) – requiring that an alien be
admissible at the time of obtaining LPR status – and concluded that
Gallimore could not satisfy this criterion because his 1995
conviction rendered him inadmissible in 1996. But if Gallimore
had already been admitted in 1994, a determination that he would
otherwise have been inadmissible in 1996 would have no practical
significance. By concluding that Gallimore was inadmissible in
1996 without acknowledging that he had been admitted
conditionally in 1994 (when he ostensibly was admissible), the BIA
appears to have mistakenly assumed as fact that 1996 was the only
year relevant to Gallimore’s eligibility for § 212(c) relief.

The Attorney General proclaims baldly that the BIA’s
“interpretation that [Gallimore] would not have been ‘lawfully
admitted for permanent residence’ until 1996, when his conditions
were removed[,]” is entitled to Chevron deference. Att’y Gen. Br.
at 22. But if the BIA simply overlooked the fact that Gallimore’s
status was adjusted pursuant to § 1186a in 1994 – as we strongly
suspect is the case – we are not entitled to sustain its decision on
grounds the Attorney General articulates ex post. See Ro v. INS,
670 F.2d 114, 116 (9th Cir. 1982) (“A BIA decision can be
affirmed only on the basis articulated in the decision.”); accord
Moret v. Karn, 746 F.2d 989, 992 (3d Cir. 1984) (“[A] court must
evaluate the propriety of an agency action solely on the grounds
invoked by the agency in its initial determination. If . . . those
grounds are inadequate or improper, the agency action must be set
aside.”). Accordingly, our belief that the BIA’s analysis proceeded
on a critically inaccurate factual assumption compels us to grant
Gallimore’s petition and remand the case for further consideration
by the BIA.

We cannot conclude with certainty, however, that the BIA
did not consider the interplay between §§ 1186a and 212(c). We
think it appropriate, therefore, to address the Attorney General’s
argument – that a conditional LPR is ineligible for § 212(c) relief
so long as his status remains “conditional,” because he has not yet
achieved the privilege of residing “permanently” in the United

16
States and thus has not been “lawfully admitted for permanent
residence.”

As an initial matter, if the BIA did indeed interpret §§ 1186a
and 212(c) in the manner that the Attorney General now suggests,
it did so sub silentio, precluding us from engaging in meaningful
review. “While we give deference to the decisions of the BIA . .
. we cannot give meaningful review to a decision in which the BIA
does not explain how it came to its conclusion.” Awolesi v.
Ashcroft, 341 F.3d 227, 228-29 (3d Cir. 2003).9 Here, the BIA’s
failure to explain its interpretation (if any) handicaps entirely our
ability to review it for reasonableness.

To the extent one can intuit from the BIA’s opinion an
interpretation that conditional permanent residents are ineligible for
§ 212(c) relief unless and until the conditions have been removed,
that conclusion runs headlong into the plain language of § 1186a
and its accompanying regulations. This language undermines – if

9
See also Awolesi, 341 F.3d at 232 (“In order for us to be
able to give meaningful review to the BIA’s decision, we must
have some insight into its reasoning.”); Dia v. Ashcroft, 353 F.3d
228, 268 (3d Cir. 2003) (en banc) (Stapleton, J., dissenting)
(“[J]udicial review necessarily requires something to review and,
if the agency provides only its result without an explanation of the
underlying fact finding and analysis, a court is unable to provide
judicial review.”); Abdulai, 239 F.3d at 555 (“[T]he availability of
judicial review . . . necessarily contemplates something for us to
review . . . . Because the BIA’s failure of explanation makes it
impossible for us to review its rationale, we grant [the] petition for
review, vacate the [BIA]’s order, and remand the matter . . . .”
(emphasis in original)); Sotto v. INS, 748 F.2d 832, 837 (3d Cir.
1984); cf. SEC v. Chenery Corp., 332 U.S. 194, 196-97 (1947) (“It
will not do for a court to be compelled to guess at the theory
underlying the agency’s action; nor can a court be expected to
chisel that which must be precise from what the agency has left
vague and indecisive. . . . We must know what a decision means
before the duty becomes ours to say whether it is right or wrong.”
(quotation marks omitted)).

17
it does not foreclose entirely – the Attorney General’s claim that
Gallimore had not been “lawfully accorded the privilege of residing
permanently in the United States” in 1994, before his 1995
conviction.

Section 1186a, as we have noted, provides that a conditional
permanent resident is one who has “obtain[ed] the status of an alien
lawfully admitted for permanent residence.” 8 U.S.C. § 1186a
(emphasis added). It is true that such status is deemed
“conditional,” perhaps suggesting that a conditional LPR is not
literally entitled to reside “permanently” in the United States so
long as the marriage-related conditions remain in place. Cf. The
American Heritage Dictionary of the English Language, (4th ed.
2 0 0 4 ) , a v a il a b le a t h ttp ://d ic tio n a ry.re f e re n c e .c o m /
browse/permanent (last visited July 12, 2010) (defining
“permanent” in part as “[n]ot expected to change in status,
condition, or place”).

But other language in § 1186a undercuts decisively a literal
interpretation of the word “permanently” as applied to the
residence status of conditional LPRs. Specifically, the provision
governing removal of an alien’s conditions provides that the
conditions are to be removed “effective as of the second
anniversary of the alien’s obtaining the status of lawful admission
for permanent residence.” 8 U.S.C. § 1186a(c)(3)(B) (emphasis
added). If the conditions are to be removed on the second
anniversary of obtaining lawful permanent resident status, then by
necessity that “permanent” status is obtained on the date of the
initial adjustment. Section 1186a(e), concerning conditional
permanent residents’ eligibility for citizenship, corroborates this
point:

For purposes of [naturalization], 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.

18
8 U.S.C. § 1186a(e) (emphasis added). These statutory provisions
unambiguously accord conditional LPRs the privilege of residing
“permanently” in the United States, notwithstanding the literal
meaning of the word “permanently” and the conditional nature of
the status.

Equally plain is 8 C.F.R. § 216.1, which provides in
pertinent part:

A conditional permanent resident is an alien who has
been lawfully admitted for permanent residence
within the meaning of [8 U.S.C. § 1101(a)(20)],
except that a conditional permanent resident is also
subject to the conditions and responsibilities set forth
in [§ 1186a] . . . . Unless otherwise specified, the
rights, privileges, responsibilities and duties which
apply to all other lawful permanent residents apply
equally to conditional permanent residents, including
but not limited to the right to apply for naturalization
(if otherwise eligible), the right to file petitions on
behalf of qualifying relatives, the privilege of
residing permanently in the United States as an
immigrant in accordance with the immigration laws,
such status not having changed; the duty to register
with the Selective Service System, when required;
and the responsibility for complying with all laws
and regulations of the United States. All references
within this chapter to lawful permanent residents
apply equally to conditional permanent residents,
unless otherwise specified.

8 C.F.R. § 216.1 (emphases added). The regulation explains, in
contrast to the Attorney General’s literal argument, that one of the
privileges to which a conditional LPR is entitled is the right to
reside “permanently” in the United States. The regulation further
demonstrates that conditional permanent residents are, by
definition, “lawfully admitted for permanent residence,” thereby
placing conditional LPRs in the same position as non-conditional

19
LPRs, except as the INA provides otherwise.10

The INA thus equates conditional LPRs with “full-fledged”
LPRs, except to the extent – but only to the extent – that § 1186a
prescribes additional obligations. And so long as a conditional
LPR complies with those obligations, they do not affect the alien’s
“privilege of residing permanently in the United States as an
immigrant in accordance with the immigration laws.” 8 C.F.R. §
216.1. Having considered § 1186a and the regulations promulgated
thereunder, we can perceive of no reason why conditional
permanent residents should not be deemed “lawfully admitted for
permanent residence” as of the date their status is initially adjusted.
The statutory and regulatory scheme appears to grant conditional
permanent residents the privilege of residing “permanently” in the
United States and – upon compliance with § 1186a’s marriage-
related requirements – the right to retain that privilege.11

10
Other regulations dealing with the termination or
revocation of conditional status similarly provide that when an
alien’s conditional LPR status ends, he loses permanent resident
status. See 8 C.F.R. § 216.4(b)(3) (providing that if a conditional
LPR fails to appear for an unwaived interview on a petition to
remove conditions, “the alien’s permanent residence status will be
automatically terminated as of the second anniversary of the date
on which the alien obtained permanent residence” (emphasis
added)); 8 C.F.R. § 216.4(d)(2) (providing that if the Attorney
General denies a conditional LPR’s petition to remove conditions,
the “alien’s lawful permanent resident status shall be terminated”).
But one would expect that before permanent resident status can be
terminated, a conditional LPR must have it in the first place.
11
We are aware of only two other sections in the INA that
cross-reference § 1186a: (1) 8 U.S.C. § 1228(b) (subjecting
conditional LPRs to expedited removal proceedings); and (2) 8
U.S.C. § 1255(d) (prohibiting the Attorney General from granting
to conditional LPRs unconditional status under the general LPR
program); see generally Kalal v. Gonzales, 402 F.3d 948, 951 (9th
Cir. 2005). We leave it to the BIA to address on remand, if
necessary, the effect of these provisions on Gallimore’s eligibility
for § 212(c) relief.

20
 While at present we are aware of no authority suggesting
that a conditional permanent resident is categorically ineligible for
§ 212(c) relief during the two-year conditional period, we believe
that prudence counsels caution. Without explicit BIA input on the
issue – and because the probable factual oversight that we have
discussed requires us to remand in any event – it is appropriate to
allow the BIA to address the Attorney General’s argument in the
first instance, should it find the need to do so. “A court of appeals
is generally not empowered to conduct a de novo inquiry into the
matter being reviewed and to reach its own conclusions based on
such an inquiry.” INS v. Ventura, 537 U.S. 12, 16 (2002) (per
curiam) (citation and internal quotation marks omitted). “Rather,
the proper course, except in rare circumstances, is to remand to the
agency for additional investigation or explanation.” Id.; accord
Negusie v. Holder, __ U.S. __, __, 129 S. Ct. 1159, 1164 (2009)
(“When the BIA has not spoken on ‘a matter that statutes place
primarily in agency hands,’ our ordinary rule is to remand to ‘give
the BIA the opportunity to address the matter in the first instance
in light of its own experience.’” (quoting Ventura, 537 U.S. at
16-17)); Gonzales v. Thomas, 547 U.S. 183, 183-87 (2006) (per
curiam).

We follow that course here, and do not at this time rule out
the interpretation the Attorney General espouses. The BIA is better
positioned to undertake a holistic review of all statutory and
regulatory provisions potentially bearing on a conditional LPR’s
eligibility for § 212(c) relief. Of course, the BIA may wish instead
simply to correct the factual oversight that we believe led it astray.
If such a correction obviates the need to address the Attorney
General’s argument, the BIA should address the IJ’s fraud analysis
in the first instance. See Pareja v. Att’y Gen., __ F.3d __, __, No.
08-4598, 2010 U.S. App. LEXIS 15656, at *42-43 (3d Cir. July 29,
2010) (granting a petition for review and remanding to allow the
BIA to either clarify its decision or, upon recognition of error,
analyze the claim anew using the correct principles, where the
“meaning of the BIA’s decision” was “uncertain[]”). In either case,
however, the BIA must – as always – explain its reasoning
sufficiently to enable proper appellate review.

21
 III.

Gallimore also argues that his removal is now barred by the
five-year statute of limitations established in 8 U.S.C. § 1256(a).
He did not raise this claim to either the IJ or the BIA. It is
therefore unexhausted, leaving us without jurisdiction to review it.
See Bin Lin v. Att’y Gen., 543 F.3d 114, 119 (3d Cir. 2008).

IV.

For the foregoing reasons, we will grant Gallimore’s
petition for review and remand the case to the BIA for further
proceedings consistent with this opinion.

22