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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-11796
Non-Argument Calendar
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Agency No. A079-400-970
JUSTO MANUEL VILLALVA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(November 13, 2014)
Before WILLIAM PRYOR, MARTIN, and ROSENBAUM, Circuit Judges.
PER CURIAM:
Justo Manuel Villalva, a native and citizen of Peru, seeks review of an order
of the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s
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(“IJ’s”) denial of Villalva’s application for a waiver of inadmissibility under
Immigration and Nationality Act (“INA”) § 212(h), 8 U.S.C. § 1182(h). On
appeal, Villalva argues that his Florida state conviction for aggravated assault with
a deadly weapon was not an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(F),
because he did not receive a sentence of imprisonment greater than one year until
his probation was revoked. He also contends that the BIA incorrectly found that he
was ineligible for a § 212(h) waiver. After careful review, we deny the petition.
I.
Villalva was admitted to the United States as a conditional resident in 2001
and subsequently adjusted his status to that of a lawful permanent resident in 2005.
In 2006, Villalva was convicted in Florida state court of two counts of aggravated
assault with a deadly weapon, in violation of Fla. Stat. §§ 784.011, 784.021(1)(a),
and 784.021(2). Villalva initially was sentenced to two years of probation. His
probation was subsequently revoked, however, and he then received a five-year
term of imprisonment.
Villalva was served with a Notice to Appear in 2011, charging him as
removable because he was a lawful permanent resident who had been convicted of
an aggravated felony for which the term of imprisonment ordered was at least one
year, pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). Villalva applied for cancellation of
removal, arguing that his aggravated-assault conviction did not qualify as an
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aggravated felony because his initial sentence did not include one year in prison,
and his subsequent sentence upon revocation of probation should not be counted.
Villalva later sought a § 212(h) waiver of inadmissibility. Villalva did not file an
application for adjustment of status along with his waiver application.
The IJ denied Villalva’s application for a § 212(h) waiver and ordered him
removed to Peru. Among other things, the IJ found that Villalva’s aggravated-
assault conviction constituted an aggravated felony because his five-year sentence
upon revocation of probation counted as the original sentence for the underlying
offenses. The IJ also concluded that Villalva was ineligible for a § 212(h) waiver
under this Court’s recent decision in Poveda v. United States Attorney General,
692 F.3d 1168 (11th Cir. 2012), because he was not applying for admission,
returning to the United States, or the subject of a presently pending application for
an adjustment of status.
Villalva appealed to the BIA, which dismissed his appeal and affirmed the
IJ’s decision. Citing its own precedent, the BIA agreed with the IJ that Villalva’s
aggravated-assault conviction qualified as an aggravated felony. The BIA likewise
agreed with the IJ that Villalva was not eligible for a § 212(h) waiver under
Poveda. Villalva timely filed a pro se petition for review with this Court, and we
granted him leave to proceed in forma pauperis and appointed him counsel.
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II.
We review questions of law de novo, including whether a conviction is an
“aggravated felony.” Accardo v. U.S. Att’y Gen., 634 F.3d 1333, 1335-36 (11th
Cir. 2011). While we generally lack jurisdiction to review the Attorney General’s
decision to grant or deny a waiver, we retain jurisdiction to review the legal
question of whether Villalva was statutorily eligible to apply for a § 212(h) waiver.
Poveda, 692 F.3d at 1172.
In assessing a petition for review, we review only the BIA’s decision, except
to the extent that the BIA expressly adopts the IJ’s opinion. Ayala v. U.S. Att’y
Gen., 605 F.3d 941, 947-48 (11th Cir. 2010). Because the BIA agreed with the IJ’s
reasoning on the aggravated felony and § 212(h) waiver issues, we review both
decisions on these issues. See id.
III.
A resident alien may be removed from the United States as a result of a
conviction for an “aggravated felony.” 8 U.S.C. § 1227(a)(2)(A)(iii). To qualify
as an aggravated felony under 8 U.S.C. § 1101(a)(43)(F), the offense must be a
result in a term of imprisonment of at least one year.
Villalva contends that his conviction for aggravated assault with a deadly
weapon is not an aggravated felony as defined by § 1101(a)(43)(F) because his
five-year sentence imposed upon revocation of probation should not count as his
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sentence for the underlying offenses. Villalva relies on Fla. Stat. § 948.06 to argue
that, when probation is revoked, the offender is punished for different conduct—
failure to comply with the terms of probation—than the original offense. Upon
revocation, he asserts, the sentence for the original offense is eliminated, not
modified, and a new sentence is imposed. The “only relationship between the
original and subsequent sentence,” according to Villalva, “is that the court is
limited to impose a sentence within the statutory maximum allowed for the original
offense.”
We recently addressed this same scenario in Dixon v. United States Attorney
General, ___ F. 3d ___, No. 13-11492, (11th Cir. Oct. 1, 2014). Like Villalva, the
petitioner in Dixon argued that the five-year term of imprisonment he received
upon revocation of probation was a new sentence that did not relate back to the
original, underlying offense. We rejected Dixon’s argument for two reasons.
First, we found that “Florida law clearly holds that the sentence imposed after a
probation violation is for the original, underlying offense.” Id., manuscript op. at
4. Second, we found that the factual circumstances of the proceedings related to
Dixon’s underlying offense reflected that description of Florida law. Specifically,
we noted that Dixon was not adjudicated guilty of the underlying offense until his
probation was revoked, at which time he was sentenced to a five-year term of
imprisonment. Id., manuscript op. at 4-5.
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Although Villalva, unlike Dixon, was “adjudicated guilty” in the underlying
judgment, that minor factual difference does not alter our conclusion that
Villalva’s five-year term of imprisonment counts as his original sentence. First,
Florida law permits courts to “[p]lace the offender on probation with or without an
adjudication of guilt.” Fla. Stat. § 921.187(1)(e). Second, as we stated in Dixon,
Florida law is clear “that the sentence imposed after a probation violation is for the
original, underlying offense.” Dixon, manuscript op. at 4; see Cozza v. State, 756
So. 2d 272, 273 (Fla. Dist. Ct. App. 2000) (“[O]nce the court revokes probation or
community control, the court resentences the offender on the original charge, and
may impose any sentence which it might have originally imposed before placing
the probationer or offender on probation or into community control.” (internal
quotation marks omitted) (citing Fla. Stat. § 948.06(2)(b)); see also Lambert v.
State, 545 So. 2d 838, 841 (Fla. 1989) (“[V]iolation of probation is not itself an
independent offense punishable at law in Florida.”). Third, consistent with Florida
law on this point, Villalva’s underlying judgment “stay[ed] and with[eld] the
imposition of sentence” pending Villalva’s completion of probation. 1
Under relevant Florida law and upon consideration of the factual
circumstances of the proceedings on Villalva’s underlying offenses, we find that
the probation revocation and resentencing resulted in a prison term of at least one
1
According to state-court records, the case number on the original judgment matched the
case number on the sentencing documents issued upon the revocation of Villalva’s probation.
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year for purposes of § 1101(a)(43)(F). Therefore, the BIA properly determined
that Villalva was removable for having committed an “aggravated felony.” See 8
U.S.C. § 1227(a)(2)(A)(iii).
IV.
Villalva also argues on appeal that the agency erred in denying his “stand-
alone” application for a § 212(h) waiver of inadmissibility and in requiring a
concurrent adjustment-of-status application. He argues that this case should be
remanded to the BIA for consideration in light of the Supreme Court’s decision in
Judulang v. Holder, 565 U.S. ___, 132 S. Ct. 476 (2011), and our decision in
Lawal v. United States Attorney General, 710 F.3d 1288 (11th Cir. 2013). He also
relies on our prior decision in Yeung v. Immigration & Naturalization Service, 76
F.3d 337 (11th Cir. 1995).
As relevant here, INA § 212(h)(1)(B) “gives the Attorney General the
discretion to waive the immigration consequences of certain criminal convictions if
a person demonstrates that her removal or denial of admission would result in
extreme hardship to a U.S. citizen family member.” Lanier v. U.S. Att’y Gen., 631
F.3d 1363, 1365 (11th Cir. 2011).
In Poveda, we considered whether a removable alien was eligible for a
waiver of inadmissibility under § 212(h) if he remained in the United States but
failed to apply for adjustment of status. 692 F.3d at 1171. We concluded that the
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petitioner, a lawful permanent resident, was ineligible for a waiver and held that
the BIA’s interpretation of § 212(h) was reasonable and entitled to our deference.
Id. at 1176-77. In doing so, we distinguished our prior decision in Yeung on the
basis that it addressed an interpretation of § 212(h) since “abandoned” by the BIA
in light of amendments to the INA in 1996. Id. at 1173-75.
According to our decision in Poveda, the BIA currently interprets § 212(h)
to be available in two situations. Id. at 1173. First, “the Attorney General may
provide a waiver to an alien at the border who seeks admission, including an alien
who has departed the United States after committing a deportable offense, so long
as the alien remains outside our borders while applying for relief.” Id. Second,
“the Attorney General may provide a waiver to an alien within our borders after his
conviction for a deportable offense so long as he applies for an adjustment of
status.” Id. In other words, “an alien who remains within the United States must
apply for an adjustment of status to obtain a waiver under section 212(h).” Id. at
1173-74.
After our decision in Poveda, we considered in Lawal whether a lawful
permanent resident who had departed the United States and re-entered after
becoming inadmissible because of a criminal conviction was eligible for a § 212(h)
waiver without concurrently filing an adjustment of status application. See Lawal,
710 F.3d at 1289. We concluded there was some ambiguity between the BIA’s
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interpretation of § 212(h), as explained by Poveda, which was decided after the
BIA’s opinion in the case, and the BIA’s prior precedent under Matter of Sanchez,
17 I. & N. Dec. 218 (BIA 1980), which treated certain aliens in the United States
as if they were outside of the border seeking admission into the United States. Id.
at 1293. Therefore, we remanded the case for the BIA to reconsider Sanchez in
light of our intervening decision in Poveda and the Supreme Court’s decision in
Judulang. Id. at 1293-94.
Subsequently, in a separate case, the BIA concluded that its decision in
Sanchez was no longer valid in light of congressional amendments to § 212(h) after
Sanchez was decided. See Matter of Rivas, 26 I. & N. Dec. 130, 131-132 (BIA
2013). On appeal, we upheld as reasonable the BIA’s decision to overrule
Sanchez. Rivas v. U.S. Att’y Gen., 765 F.3d 1324, 1329-30 (11th Cir. 2014).
Here, the BIA did not err in denying Villalva’s “stand-alone” application for
a § 212(h) waiver of inadmissibility. Like the petitioner in Poveda, Villalva is not
eligible for relief under §212(h) because he remained in the United States and did
not concurrently file an application for adjustment of status. 2 Poveda, 692 F.3d at
1173, 1176. Villalva’s reliance on Judulang and Lawal is unavailing because
neither of these decisions directly contradicts the holding of Poveda. See United
2
Although Villalva made a fleeting and unsubstantiated reference to having filed an
application for an adjustment of status in his briefing before the BIA, there is no indication of
such a filing in the record and, further, Villalva has not renewed that claim on appeal.
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States v. Kaley, 579 F.3d 1246, 1255 (11th Cir. 2009) (“We may disregard the
holding of a prior opinion only where that holding is overruled by the Court sitting
en banc or by the Supreme Court.” (internal quotation marks omitted)). Indeed,
Judulang dealt with discretionary relief under a different section of the INA, and
Villalva expressly concedes that he is relying on non-binding dicta in that opinion.
Lawal identified an ambiguity in the BIA’s prior precedent that, as our decision in
Rivas shows, is no longer present. Therefore, the BIA properly determined that
Villalva was not eligible for a § 212(h) waiver based on Poveda.
V.
In sum, the BIA correctly held that Villalva committed an aggravated felony
and that he was ineligible for a § 212(h) wavier based on our decision in Poveda.
Accordingly, we DENY the petition for review.
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