06-2363-ag
De La Rosa v. Dep’t of Homeland Sec.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2006
(Argued: May 16, 2007 Decided: June 13, 2007)
Docket No. 06-2363-ag
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JUANA ANTONIA DE LA ROSA ,
Petitioner,
—v.—
UNITED STATES DEPARTMENT OF HOMELAND SECURITY,
Respondent.
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B e f o r e : MINER, KATZMANN, Circuit Judges, and MURTHA, District Judge.*
_______________
Petition for review of a decision and order of the Board of Immigration Appeals affirming a
decision of an immigration judge pretermitting an application for a waiver of inadmissibility
under section 212(c) of the Immigration and Naturalization Act. We hold that a lawful
permanent resident who has procured her status by fraud or mistake has not been “lawfully
admitted for permanent residence” for purposes of section 212(c). Accordingly, the petition for
review is DENIED, and the decision of the BIA is AFFIRMED.
_______________
*
The Honorable J. Garvan Murtha, United States District Judge for the District of
Vermont, sitting by designation.
APPEARING FOR PETITIONER: JOSE W. VEGA, Jose W. Vega Law Firm, P.L.L.C.,
Houston, TX
APPEARING FOR RESPONDENT : JANICE K. REDFERN (Peter D. Keisler, Assistant Attorney
General, Civil Division, Linda S. Wernery, Assistant
Director, Office of Immigration Litigation on the brief),
Office of Immigration Litigation, United States Department
of Justice, Washington, DC
_______________
PER CURIAM:
Petitioner Juana Antonia De La Rosa (“De La Rosa”), a citizen of the Dominican
Republic, seeks review of an April 19, 2006 decision of the BIA affirming the December 2, 2005
decision of Immigration Judge (“IJ”) Barbara A. Nelson denying the petitioner’s application for a
waiver of inadmissibility under Immigration and Nationality Act (“INA”) § 212(c), 8 U.S.C. §
1182(c) (repealed 1996) (“§ 212(c)”). In re De La Rosa, No. A91 353 323 (B.I.A. Apr. 19,
2006), aff’g No. A91 353 323 (Immig. Ct. N.Y. City Dec. 2, 2005). Section 212(c) is a form of
discretionary relief that can be granted by the Attorney General to certain classes of aliens who
otherwise would be deemed removable. Based on statements by De La Rosa at her initial
hearing, the IJ determined that despite having been adjusted to the status of lawful permanent
resident, De La Rosa had not been “lawfully admitted for permanent residence” and thus was not
eligible for relief. 8 U.S.C. § 1182(c) (repealed 1996). De La Rosa challenges this construction
of the statute. We hold that an alien is only “lawfully admitted for permanent residence” for
purposes of the INA if his or her adjustment to lawful permanent resident complied with
substantive legal requirements. We therefore affirm the decision of the BIA and deny the
petition.
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I.
De La Rosa came to the United States from the Dominican Republic at some point during
the 1980s.1 De La Rosa adjusted her status to lawful permanent resident in 1989 pursuant to the
amnesty provision of the Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100
Stat. 3359 (codified as amended in scattered sections of 8 U.S.C.). Eligibility for the amnesty
provision, which expired in November 1986, was limited to aliens who “entered the United
States before January 1, 1982” and “resided continuously in the United States in an unlawful
status since such date and through the date [their] application” was filed. 8 U.S.C. §
1255a(a)(2)(A).
In 1992, De La Rosa was convicted of a felony drug sale in New York state court
pursuant to a guilty plea. In August 2004, she was placed in removal proceedings based on her
status as a criminal alien. De La Rosa conceded that she was removable and declared her
intention to apply for a waiver under § 212(c). Prior to its repeal in 1996, § 212(c) granted the
Attorney General the discretion to waive grounds of exclusion for “[a]liens 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.” 8 U.S.C. § 1182(c) (repealed 1996); see also Matter of G–A–, 7 I. & N. Dec. 274 (B.I.A.
1956) (extending § 212(c) relief to deportation proceedings). Although § 212(c) has been
repealed, it continues to be applied to aliens, such as De La Rosa, who pleaded guilty to certain
deportable offenses prior to the effective date of the change. See Drax v. Reno, 338 F.3d 98, 102
(2d Cir. 2003); see also INS v. St. Cyr, 533 U.S. 289, 326 (2001).
1
As is explained in greater detail below, De La Rosa’s date of entry is in dispute.
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At her hearing, De La Rosa testified that she had entered the United States in 1987 with a
tourist visa. The IJ noted that this testimony was in tension with De La Rosa having adjusted her
status through the amnesty program. The hearing was adjourned, and De La Rosa was given the
opportunity to submit additional evidence on the question of whether she had been “lawfully
admitted to permanent residence.” At a subsequent hearing De La Rosa claimed that she had
entered the United States in 1980 in Puerto Rico. De La Rosa submitted two documents in
support of this revised account of her entry into the United States, neither of which the IJ found
persuasive. At the close of the hearing, the IJ rejected De La Rosa’s application for relief,
finding it “clear that her permanent residence was not lawfully obtained as she was not present in
the United States in 1982.” De La Rosa appealed to the BIA which affirmed the IJ’s decision in
a per curiam opinion. The BIA noted that De La Rosa bore the burden of proof in establishing
her eligibility for a waiver and that the IJ had “properly found that [De La Rosa] failed to meet
this burden.”
II.
De La Rosa primarily argues that because she had previously adjusted her status to lawful
permanent resident, the IJ erred in determining that she had not been “lawfully admitted” for
purposes of § 212(c).2 In construing the INA we are guided by the familiar two-step analysis set
2
Our review of decisions denying relief under § 212(c) is limited to “constitutional
claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D); Avendano-Espejo v. Dep’t of Homeland
Sec., 448 F.3d 503, 505 (2d Cir. 2006) (per curiam). The phrase “questions of law” is
understood to include issues of statutory construction. Bugayong v. INS, 442 F.3d 67, 72 (2d Cir.
2006) (per curiam). Because De La Rosa’s claim raises a question of law, specifically the
meaning of “lawfully admitted for permanent residence” as used in § 212(c), we have jurisdiction
to review De La Rosa’s petition.
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forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Counsel, 467 U.S. 837, 842-43
(1984). See INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) (recognizing that “the BIA should
be accorded Chevron deference as it gives ambiguous statutory terms concrete meaning through a
process of case-by-case adjudication” (quotation marks omitted)). We ask first “whether
Congress has directly spoken to the precise question at issue. If the intent of Congress is clear,
that is the end of the matter; for the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842-43. However, “[i]f the
statute is silent or ambiguous with respect to the specific issue, the question for the court is
whether the agency’s answer is based on a permissible construction of the statute.” Id. at 843.
We need not concern ourselves with the first step of the Chevron analysis as the BIA has
offered a permissible interpretation of the statute to which we would defer if we were to find that
the language at issue was ambiguous. In Matter of Koloamatangi, 23 I. & N. Dec. 548 (B.I.A.
2003), the BIA explained 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” because
the “alien is deemed, ab initio, never to have obtained lawful permanent resident status.” Id. at
551.3 While Koloamatangi had acquired his status by fraud, the decision explicitly addressed
situations where the alien “had otherwise not been entitled to [lawful permanent residence].” Id.
at 550.
3
Koloamatangi sought cancellation of removal under section 240A(a) of the INA, 8
U.S.C. § 1229b(a). Koloamatangi, 23 I. & N. at 548. In order to be eligible for cancellation of
removal an alien must, inter alia, have been “lawfully admitted for permanent residence for not
less than 5 years.” 8 U.S.C. § 1229b(a)(1).
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The BIA’s interpretation of “lawfully admitted for permanent residence” is reasonable.
The natural reading of “lawful” connotes more than just procedural regularity; it suggests that the
substance of an action complied with the governing law. See Matter of Longstaff, 716 F.2d 1439,
1441 (5th Cir. 1983); see also Black’s Law Dictionary 902 (8th ed. Gardner ed.) (defining
“lawful” as “[n]ot contrary to law”). Moreover, the BIA’s interpretation is consistent with 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. See Savoury v. U.S. Att’y Gen., 449 F.3d 1307,
1317 (11th Cir. 2006); Arellano-Garcia v. Gonzales, 429 F.3d 1183, 1187 (8th Cir. 2005); Monet
v. INS, 791 F.2d 752, 753-55 (9th Cir. 1986); Longstaff, 716 F.2d at 1441-42.
In sum, we defer to the BIA’s reasonable interpretation of the INA and hold that to 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. Because De La
Rosa failed to show that she had complied with the relevant substantive legal requirements the IJ
correctly determined that she had not been “lawfully admitted for permanent residence” and was
not entitled to § 212(c) relief.
We have considered all of petitioner’s other arguments and find them without merit.
Accordingly, for the foregoing reasons, the petition for review is DENIED and the order of the
BIA is AFFIRMED.
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