In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 12‐3611
VLADISLAV MARGULIS,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General of the United States,
Respondent.
____________________
Petition to Review Order
of the Board of Immigration Appeals.
No. A070‐233‐197.
____________________
ARGUED MAY 21, 2013—DECIDED AUGUST 5, 2013
____________________
Before POSNER, MANION, and ROVNER, Circuit Judges.
POSNER, Circuit Judge. A lawful permanent resident of the
United States who is not a citizen is deportable (“remova‐
ble,” in the current terminology) if he commits nontrivial
crimes in the United States. 8 U.S.C. § 1227(a)(2). If he then
leaves the United States he cannot be readmitted for at least
five years (the length depends on various factors, including
the ground or grounds of deportability and whether he had
been ordered deported or had self‐deported, a term we take
2 No. 12‐3611
up later). See 8 U.S.C. §§ 1182(a)(9), (a)(9)(B). But the immi‐
gration authorities can waive inadmissibility if the crimes
that make the alien deportable are minor. 8 U.S.C. § 1182(h)
(section 212(h) of the Immigration and Nationality Act). The
effect of admission is presumably to wipe the slate clean—to
make him no longer deportable on the basis of the crimes
he’d committed. Otherwise what would be the point of the
waiver?
The alien in this case, Margulis, embarked on a business
trip to Canada but was stopped by Canadian immigration
officers just inside Canadian territory. They refused to allow
him to “enter” Canada (of course he was in Canada when
they told him this). So he turned his car around and drove
back across the border. He had to clear U.S. customs. The
immigration officers at the customs station conducted data‐
base inquiries and discovered that Margulis had a criminal
record in the United States. They allowed him to return to
his home in Illinois—but also placed him in removal pro‐
ceedings under section 1227(a)(2) on the basis of his criminal
record, which made him removable even though his crimes
had not been so serious (they had resulted in only 30 days of
jail time for him) as to make him ineligible for the waiver we
mentioned, were he deemed readmitted to the United States.
Arguing that as an arriving alien he should be eligible for
the waiver, Margulis asked that the removal proceedings be
terminated and that he be placed in admissibility proceed‐
ings instead. The Board of Immigration Appeals refused,
precipitating this petition for review. The Board ruled that
Margulis had never “entered” Canada and so could not have
returned to the United States.
No. 12‐3611 3
Yet Margulis had entered Canada when he crossed the
border and had returned to the United States when he re‐
crossed the border in the other direction. Canada may if it
wants call his entry into that country something else (just as
Russia deems its international airport transit zones not to be
Russian territory), but why should such Aesopian nomencla‐
ture bind, or for that matter influence, the U.S. immigration
authorities?
One possible answer, though not mentioned by the
Board and therefore unavailable to support its ruling, is that
the purpose of making a criminal record that is grounds for
removal forgivable in the case of a deportable alien return‐
ing to the United States is to encourage self‐deportation (that
is, voluntary deportation). Klementanovsky v. Gonzales, 501
F.3d 788, 792–93 (7th Cir. 2007); Poveda v. U.S. Attorney Gen‐
eral, 692 F.3d 1168, 1177–78 (11th Cir. 2012); Cabral v. Holder,
632 F.3d 886, 893 (5th Cir. 2011). Self‐deportation reduces the
burden on the immigration authorities of dealing with illegal
aliens, because it is easier for the immigration authorities to
block an alien at the border from returning than it is to find
and deport him once he’s back inside. The waiver is a bonus
for and thus inducement to self‐deportation because it gives
the self‐deporting alien a shot at becoming a lawful perma‐
nent resident of the United States.
The Board ruled that Margulis “was not an arriving alien
because he was never lawfully admitted to another country,
and therefore never effected a departure from the United
States.” The “therefore” is hard to fathom. Suppose Margulis
had made a secret trip to another country to visit a dying
relative, and he had made the trip in secret because he was
persona non grata in that country. Suppose he remained there
4 No. 12‐3611
for six months, until the relative died, and then returned to
the United States. The Board apparently would say that he
had “never effected a departure from the United States.”
That sounds absurd. And the “therefore” contradicts a regu‐
lation of the Department of Homeland Security that states
that “the term depart from the United States means depart
by land, water, or air: (1) From the United States for any for‐
eign place.” 8 C.F.R. § 215.1(h). That’s an exact description of
what Margulis did. Even if he didn’t enter Canada, he de‐
parted “from the United States for … [a] foreign place,” just
as a person who boards a plane in Chicago for a flight to
Ulan Bator would say that he was departing from the United
States for Ulan Bator.
For authority the Board cited, though did not discuss, its
58‐year‐old decision in Matter of T‐, 6 I. & N. Dec. 638 (BIA
1955). A lawful permanent resident of the United States
boarded a ship for Germany, but was not permitted to de‐
bark there because, as he was checking his travel documents
preparatory to debarking, a gust of wind swept them out of
his hands and into the water. No other foreign country
would let him debark either. So back he came to the United
States, never having left the ship, and the Board held that
this was not a new entry because he had not been admitted
to any foreign country. He had entered German territorial
waters, and to that extent the case is comparable to the pre‐
sent one. At the time, however, the immigration statute de‐
fined “entry” as (so far as related to the case) coming from “a
foreign port,” 8 U.S.C. § 1101(a)(13) (repealed in 1996), and
the Board thought that since the alien had been “refused en‐
try at foreign ports” he had not entered the United States
from a foreign port. 6 I. & N. Dec. at 640. The ship had
docked at the port, but he had not entered the port and so
No. 12‐3611 5
could not come from it. The definition of “entry” has been
repealed, yet the Board has failed to explain why Matter of T,
which turned on the meaning of “entry,” nevertheless con‐
trols Margulis’s case.
There is a further wrinkle. Margulis’s abortive visit to
Canada was not his first departure from the United States.
Twice before he had traveled to Canada without incident,
and he had also traveled to Venezuela without incident. All
three trips had occurred after he had become deportable.
Had the immigration authorities been on their toes, they
would upon his return from one or another of these trips
have placed him in proceedings to determine his admissibil‐
ity, and he would have sought the waiver he sought unsuc‐
cessfully in this case; for on all three occasions he had been
allowed to “enter” the foreign country, and thus when he
came back to the United States he was uncontroversially a
returning alien eligible for the waiver. In Matter of Sanchez,
17 I. & N. Dec. 218, 223 (BIA 1980), the Board had held, quot‐
ing Matter of Tanori, 15 I. & N. Dec. 566, 568 (BIA 1976), that
“a waiver of the ground of inadmissibility may be granted in
a deportation proceeding when, at the time of the alien’s last
entry, he was inadmissible because of the same facts which
form the basis of his deportability.” That describes this case.
The Board mentioned the Sanchez case in its opinion
denying Margulis’s motion for reconsideration of its earlier
decision, but said that a regulation promulgated by the At‐
torney General had overruled Sanchez so far as “nunc pro
tunc” waivers of inadmissibility were concerned. (“Nunc
pro tunc” is Latin for “now for then”; in law it means allow‐
ing retroactive correction of errors. INS v. St. Cyr, 533 U.S.
289, 294 n. 3 (2001); Gonzalez‐Balderas v. Holder, 597 F.3d 869,
6 No. 12‐3611
870 (7th Cir. 2010).) The regulation provides, so far as bears
on this case, that an application for adjustment of status
“shall be the sole method of requesting the exercise of discre‐
tion under...[a list of sections of the immigration statute that
includes section 212(h)], as they relate to the inadmissibility
of an alien in the United States.” 8 C.F.R. § 1245.1(f).
The Board’s reliance on this regulation is very strange,
since materially identical language has appeared in regula‐
tions since at least 1964, see 29 Fed. Reg. 11493 (Aug. 11,
1964)—more than fifteen years before the Sanchez decision,
and before other decisions as well in which the Board has
deemed applicants eligible for nunc pro tunc relief under
section 212(h). See Lawal v. U.S. Attorney General, 710 F.3d
1288, 1292–93 and n. 7 (11th Cir. 2013) (per curiam). When
relief is granted nunc pro tunc, it dates back to when the al‐
ien returned from a foreign trip, at which time he would
have been placed in admissibility proceedings, as opposed
to being admitted into the United States and placed in re‐
moval proceedings. That would have been Margulis’s situa‐
tion had he been “caught” returning from one of his previ‐
ous foreign trips and placed in admissibility proceedings.
Sanchez would entitle him to seek in his current removal
proceeding the waiver of inadmissibility that he could have
sought in an admissibility proceeding upon return from one
of those earlier trips.
The Board can reexamine, and if it wants overrule, a
precedent, but it didn’t do that in this case. It ignored it. This
is not permissible. An agency must give reasons for aban‐
doning a precedent. National Cable & Telecommunications
Ass’n v. Brand X Internet Services, 545 U.S. 967, 981–82 (2005);
No. 12‐3611 7
Motor Vehicle Mfrs. Ass’n v. State Farm Mutual Automobile Ins.
Co., 463 U.S. 29, 42 (1983).
The Board cited our decision in Klementanovsky v. Gonza‐
les, supra, for the proposition that “because [Margulis] is
properly charged as a deportable alien rather than an alien
seeking admission, he is not eligible for a waiver of inadmis‐
sibility nunc pro tunc under section 212(h).” This is a throw‐
back to the Board’s discussion of “entry.” Not having “de‐
parted” from the United States (in the Board’s view), Margu‐
lis could not be “admitted” to the United States and there‐
fore could not ask for the waiver. But Klementanovsky is not
about nunc pro tunc, and though it does note that “a waiver
of inadmissibility under § 212(h) may be granted nunc pro
tunc to retroactively cure grounds of inadmissibility at the
time of entry,” 501 F.3d at 790, Klementanovsky himself had
not, so far as appears, ever left the United States after first
entering it. He was not claiming to be a returning alien. The
citation of the case by the Board is incomprehensible, and
the government’s argument in its brief that Klementanovsky
displaces Sanchez is nonsense.
The Board has not provided a rational basis for its deci‐
sion. The petition for review is therefore granted and the
case returned to the Board for further proceedings.
But we should note that our reference to “further pro‐
ceedings” is of more than ordinary importance. Our grant of
the petition for review is not a ruling that the petitioner is
entitled to the waiver that he’s seeking. That remains to be
seen. After the case was argued to us, the Board, in Matter of
Rivas, 26 I. & N. Dec. 130 (BIA 2013), overruled Sanchez,
holding that “granting a [212(h)] waiver nunc pro tunc
would violate the plain language of the statute and the in‐
8 No. 12‐3611
tent of Congress.” Id. at 134. As the overruling was based on
a statutory interpretation, there may be room for argument
to a reviewing court that the Rivas decision is erroneous.
There is also the unanswered question whether the Board
would or should apply the decision retroactively. These are
matters for the Board to decide in the first instance on re‐
mand.
Moreover, although the Board did not explain the basis
for its ruling that the petitioner had not “departed” from the
United States and therefore had not been seeking admission
to this country (a prequisite to waiver) when he returned
from his blink‐of‐the‐eye visit to Canada, there may be an
explanation that the Board could offer. We noted that when
Congress eliminated “entry” it left untouched a regulation
that defined “depart” broadly enough to encompass Margu‐
lis’s abortive trip to Canada. But the statute did more than
just eliminate entry; it substituted admission. So now a peti‐
tioner in Margulis’s situation, re‐entering the United States
when before departing he had committed a crime that had
made him deportable, must to qualify for the waiver obtain
“admission” to the United States, defined as “lawful en‐
try … after inspection and authorization by an immigration
officer.” 8 U.S.C. § 1101(a)(13)(A); see id., § 1101(a)(13)(C)(v).
The immigration officers did not treat Margulis as a lawful
entrant, for they placed him immediately in removal pro‐
ceedings—which is to say they deemed him already present
in the United States, since if they had thought he was seek‐
ing admission they would have placed him in admissibility
proceedings rather than in removal proceedings. He had de‐
parted from the United States, but by not qualifying for ad‐
mission was deemed ineligible for a waiver that was condi‐
tioned on his returning as a lawful entrant.
No. 12‐3611 9
In re R‐D‐, 24 I. & N. Dec. 221 (BIA 2007), supports this
approach, but only in dictum. The Board’s opinion in this
case cites R‐D‐ but prefaces the citation by “compare,” leav‐
ing unclear what weight the Board meant to give to that de‐
cision. Whether the Board meant to embrace the reasoning
sketched above cannot be determined from its cryptic refer‐
ence to R‐D‐ and Matter of T‐.
PETITION FOR REVIEW GRANTED, CASE REMANDED.