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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
Nos. 17-12521 & 18-10010
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Agency No. A093-392-349
EDUARDO ARIEL GOMEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petitions for Review of a Decision of the
Board of Immigration Appeals
________________________
(August 1, 2019)
Before MARCUS, GRANT, and HULL, Circuit Judges.
PER CURIAM:
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Eduardo Gomez came to the United States as part of a program that allows
certain foreigners to visit without a visa. In exchange for that convenience,
program participants cannot challenge the government’s efforts to remove them
from this country. Nor can they adjust their nonimmigrant visitor status to that of a
legal permanent resident—except in narrow circumstances. Gomez invoked one of
those exceptions and succeeded in gaining permanent resident status. But he did
so through fraud by using a fake Cuban birth certificate. When the Department of
Homeland Security (DHS) sought to remove Gomez based on that fraudulent status
adjustment, he admitted the charge—but he also applied for a fraud waiver, which
the Board of Immigration Appeals (BIA) denied. And when Gomez moved to
reopen his proceedings, the agency rejected that request as well, citing the fact that
at entry Gomez had waived his right to challenge his removal. But in so doing, the
agency failed to consider whether that entry waiver continued to apply after
Gomez successfully—albeit fraudulently—became a permanent resident. We
therefore vacate the BIA’s order denying Gomez’s motion to reopen and remand
for further proceedings.
I.
A.
Gomez, a native and citizen of Argentina, entered the United States as a
nonimmigrant tourist in 2002. He came through the Department of State’s Visa
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Waiver Program (VWP), which allows foreign citizens from certain countries to
visit the United States for 90 days without obtaining a visa, pursuant to section 217
of the Immigration and Nationality Act (INA). See INA § 217(a), 8 U.S.C.
§ 1187(a). Notably, that expedience comes with some tradeoffs. For one thing,
VWP participants must waive any right “to contest, other than on the basis of an
application for asylum, any action for removal,” which is known as the “VWP
waiver.” INA § 217(b)(2), 8 U.S.C. § 1187(b)(2). And on top of that,
section 245(c) of the INA generally precludes an alien who was admitted under the
VWP from adjusting his status from that of a nonimmigrant visitor to that of a
lawful permanent resident. See INA § 245(c)(4), 8 U.S.C. § 1255(c)(4).
There are, however, a few exceptions. As relevant here, the Cuban
Adjustment Act allows certain nonimmigrant visitors—including VWP entrants—
to adjust their status “notwithstanding the provisions of section 245(c) of the
[INA].” Pub. L. No. 89–732, § 1, 80 Stat. 1161 (1966). But as the name of the
Cuban Adjustment Act might suggest, this exemption applies only to “a native or
citizen of Cuba.” Id. Which is another way of saying that it does not cover
Gomez—who, again, hales from Argentina. He nevertheless invoked this
exception and applied for permanent resident status using a fake Cuban birth
certificate. And it worked: the government granted Gomez permanent resident
status in 2009.
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B.
A few years later, DHS caught on and charged Gomez with removability
based on his fraudulent status adjustment. The agency did not, however, charge
him with overstaying his 90-day visit under the VWP. That matters because when
the government seeks to remove VWP entrants for overstaying their visit, it can do
so “without referral of the alien to an immigration judge for a determination of
deportability.” 8 C.F.R. § 217.4(b)(1). Here, by contrast, DHS sought to remove
Gomez based on his fraud, and so it placed him in plenary removal proceedings
before an Immigration Judge (IJ). Gomez admitted the fraud charge, but sought
discretionary relief—known as a “fraud waiver”—under section 237(a)(1)(H) of
the INA. That provision allows the Attorney General to waive removal for an alien
who gained admission via fraud, so long as the alien meets certain requirements.
See INA § 237(a)(1)(H), 8 U.S.C. § 1227(a)(1)(H).
Gomez made it clear that he sought a fraud waiver—and only a fraud
waiver—throughout his removal proceedings. When the IJ initially asked about
the “form of relief he’s seeking,” Gomez’s attorney replied, “a 237(a)(1)(H)
waiver.” And when the IJ later asked how Gomez was “seeking to adjust” his
status, counsel replied that “[h]e’s not” and that the only issue on the table was
“the 237(a)(1)(H) waiver.” Nonetheless, the IJ proceeded to terminate Gomez’s
permanent resident status and then construed his fraud waiver request as a new
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application for adjustment of status. As a result, the IJ ordered Gomez’s removal
based on her finding that Gomez “is not eligible to seek adjustment of status”—
without addressing his request for a fraud waiver.
On appeal, the BIA tried to fix the issue by addressing both the phantom
request for adjustment of status and the real request for a fraud waiver. Yet Gomez
fared no better, and the agency denied both requests. In rejecting his bid for a
fraud waiver, the BIA noted that Gomez had “never been ‘admitted’” to the United
States and thus “is not statutorily eligible” for a fraud waiver under section
237(a)(1)(H). That provision only applies to individuals who committed fraud “at
the time of admission.” INA § 237(a)(1)(H), 8 U.S.C. § 1227(a)(1)(H). What’s
more, the BIA found that Gomez failed to explain how “he is not subject to the
limitations set forth” in the VWP statute—specifically, the provision requiring
VWP entrants to waive any right to contest their removal. The agency concluded
that “[n]one of the limited exceptions allowing VWP entrants to qualify for
immigration benefits extends to the forms of relief” sought by Gomez.
Gomez did not file a petition for review of that BIA decision, which also
concluded that the IJ had not erred in terminating lawful permanent resident status
for Gomez. 1 Instead, he filed a motion to reopen his removal proceedings based on
1
The BIA’s April 28, 2016 decision thus became final and constitutes the final removal
order that Gomez seeks to reopen and contest based on the fraud waiver. See Dorelien v. U.S.
Att’y Gen., 317 F.3d 1314, 1319 n.12 (noting that the BIA’s affirmance of an IJ’s order of
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what he deemed “intervening precedent”—namely, the BIA’s decision in Matter of
Agour, 26 I. & N. Dec. 566 (BIA 2015). In Agour, the BIA held that “an alien’s
adjustment of status . . . constitutes an admission for purposes” of fraud waiver
eligibility. Id. at 570. Put another way, Agour says that the fraud waiver provision
covers both 1) aliens who committed fraud when they entered the country, and 2)
aliens who committed fraud when they adjusted their status. See id. The BIA,
however, declined to reopen his removal proceedings, reasoning that—even if
Gomez had been “admitted” for purposes of the fraud waiver provision—he still
was not “eligible for immigration benefits as a VWP entrant.” Gomez did not file
a petition for review of this BIA order either.
A few months later, Gomez filed a second motion to reopen with the help of
a different attorney. This time, Gomez argued that his former lawyer provided
ineffective assistance of counsel by failing to file certain briefs and bungling
important legal arguments. But the BIA denied this motion as “time-barred and
number-barred.” Under the INA, “an alien generally may file only one motion to
reopen, and must do so no later than 90 days after the final order of removal.”
Avila-Santoyo v. U.S. Att’y Gen., 713 F.3d 1357, 1358 (11th Cir. 2013) (en banc)
removal “is treated as a final order of removal”). Gomez has not sought to reopen or contest the
termination of his lawful permanent resident status.
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(per curiam). Gomez’s second motion to reopen failed to comply with both the
filing deadline and the filing limit—it was too late and one too many.
Gomez argued that the BIA should “equitably toll”—in other words, relax—
those filing restrictions, considering his prior attorney’s allegedly deficient
performance. For its part, the BIA assumed that equitable tolling could apply but
found that it was not warranted here. In the agency’s view, Gomez would not have
qualified for a fraud waiver regardless of his attorney’s performance; he did not
suffer any prejudice that would justify equitable tolling. The BIA reasoned that
Gomez, as a VWP entrant, “expressly waived any right to apply for most
immigration benefits, including adjustment of status.” Moreover, according to the
BIA, Gomez’s application for permanent resident status “was acted upon only due
to administrative inadvertence or error,” and thus did not count as “an ‘admission’
to the United States.” Gomez moved for reconsideration, which the BIA also
denied.
Gomez now petitions this Court for review of the BIA’s order denying his
second motion to reopen and its order denying his motion for reconsideration.
II.
This Court reviews the BIA’s denial of a motion to reopen removal
proceedings “for abuse of discretion,” which we have described as “quite broad.”
Gbaya v. U.S. Att’y Gen., 342 F.3d 1219, 1220 (11th Cir. 2003) (per curiam)
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(citation omitted). The agency enjoys a lot of latitude in “this particular area,” id.,
because of the heightened potential for strategic abuse: “as a general matter, every
delay works to the advantage of the deportable alien who wishes merely to remain
in the United States.” INS v. Doherty, 502 U.S. 314, 323 (1992). For that reason,
“motions to reopen are disfavored” and the “moving party bears a heavy burden.”
Zhang v. U.S. Att’y. Gen., 572 F.3d 1316, 1319 (11th Cir. 2009); see also Jiang v.
U.S. Att’y Gen., 568 F.3d 1252, 1256 (11th Cir. 2009) (“Motions to reopen in
removal proceedings are particularly disfavored.”).
Still, the “BIA abuses its discretion when it misapplies the law in reaching
its decision.” Ferreira v. U.S. Att’y Gen., 714 F.3d 1240, 1243 (11th Cir. 2013).
And when it comes to “claims of legal error”—that is, “challenges to the legal
reasoning offered by the BIA”—we review the agency’s conclusions de novo. Lin
v. U.S. Att’y Gen., 881 F.3d 860, 871, 872 (11th Cir. 2018); see also Li v. U.S.
Att’y Gen., 488 F.3d 1371, 1374 (11th Cir. 2007) (“To the extent that the decision
of the Board was based on a legal determination, our review is de novo.”).
Moreover, when the BIA “has not applied the law” to the relevant facts, “appellate
courts should remand” so that the agency can make that determination in the first
place. Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1236 (11th Cir. 2007);
see also Lin, 881 F.3d at 874 (“Where the BIA has not given ‘reasoned
consideration’ of a question or made ‘adequate findings,’ we remand for further
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proceedings.” (quoting Gaksakuman v. U.S. Att’y Gen., 767 F.3d 1164, 1168 (11th
Cir. 2014))).
III.
The BIA denied Gomez’s second motion to reopen based on incomplete
legal reasoning. The agency hinged its decision on section 217(b)(2), stating that,
“[a]s a VWP entrant,” Gomez “expressly waived any right to apply for most
immigration benefits, including adjustment of status.” But as support for that
conclusion, the BIA relied on its April 28, 2016 order affirming Gomez’s removal,
which in turn relied on Matter of D-C-M-P-, 26 I. & N. Dec. 644 (BIA 2015). And
that decision merely repeated the general proposition that VWP entrants waive any
right to contest their removal. See Matter of D-C-M-P-, 26 I. & N. Dec. at 647.
True, that decision also cited several cases from our sister circuits holding that
VWP entrants cannot sidestep this waiver by applying for adjustment of status
after overstaying their visit. See, e.g., McCarthy v. Mukasey, 555 F.3d 459, 462
(5th Cir. 2009) (per curiam); Bayo v. Napolitano, 593 F.3d 495, 507 (7th Cir.
2010) (en banc); Bradley v. U.S. Att’y Gen., 603 F.3d 235, 242–43 (3d Cir. 2010);
Bingham v. Holder, 637 F.3d 1040, 1047 (9th Cir. 2011). But all of those cases
still differ from this one in a critical respect: they involved VWP entrants who had
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not yet adjusted their status by the time that the government sought to remove
them.
The BIA thus failed to grapple with the fact that Gomez had already adjusted
to permanent resident status. As the government’s Notice to Appear points out,
Gomez “adjusted [his] status to that of a Lawful Permanent Resident on July 1,
2009.” And as the IJ acknowledged, Gomez “entered the United States initially on
the visa waiver program,” but later “adjusted status under the Cuban Adjustment
Act.” The relevant question, therefore, is not whether Gomez initially waived his
right to challenge his removal as a VWP entrant. Rather, it is whether that VWP
waiver continued to apply after he successfully—albeit fraudulently—adjusted his
status. That question needs to be answered before it can be determined whether
Gomez is otherwise eligible for a fraud waiver. We therefore remand to the BIA
for it to consider this threshold legal issue in the first instance.
To be sure, if Gomez had not adjusted his status, the VWP’s bar on
challenging removal would likely still apply. See, e.g., McCarthy, 555 F.3d at 462;
Bayo, 593 F.3d at 507; Bradley, 603 F.3d at 242–43; Bingham, 637 F.3d at 1047.
Indeed, the government ordinarily can remove a VWP overstay “without referral”
to an IJ, precluding the alien from seeking a fraud waiver—or any other form of
relief besides asylum. 8 C.F.R. § 217.4(b)(1). If Gomez had remained a
nonimmigrant visitor under the VWP, DHS could have “promptly processed his
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removal without a hearing, as it normally would with any legitimate VWP
participant who overstays his visit.” Bayo, 593 F.3d at 498. But the fact remains
that Gomez had adjusted to permanent resident status, an issue that the BIA failed
to address.
Finally, we address the BIA’s independent conclusion that Gomez is not
eligible for a fraud waiver because his status adjustment was obtained “only due to
administrative inadvertence or error,” and therefore “was not an ‘admission’ to the
United States,” as required by the fraud waiver statute. As support, the agency
cited this Court’s decision in Savoury v. U.S. Att’y Gen., 449 F.3d 1307 (11th Cir.
2006). But there, we analyzed a different waiver provision, section 212 of the
INA, which expressly restricted relief to aliens who had been “lawfully admitted
for permanent residence.” Id. at 1312 (emphasis added). Because the alien in that
case only obtained admission due to administrative error, it could not be said that
he had been lawfully admitted. See id. at 1317. The fraud waiver provision at
issue here, by contrast, does not require a lawful admission. See INA §
237(a)(1)(H), 8 U.S.C. § 1227(a)(1)(H). Indeed, the whole point of the provision
is to grant waivers to aliens who gained admission via fraud—that is, aliens who
were unlawfully admitted.
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IV.
On remand, the BIA should address whether the VWP’s bar in
section 217(b)(2) on challenging removal continues to apply to Gomez in light of
his prior status adjustment under the circumstances of the case. If the VWP’s bar
applies, that ends the matter. If the bar does not apply, the agency should then
consider whether Gomez is otherwise eligible to seek a fraud waiver under
section 237(a)(1)(H). In that regard, the agency should consider whether he
satisfies the five requirements for eligibility under the principles laid down in
Matter of Agour. At that point, the agency can assess whether Gomez has
established ineffective assistance of counsel, such that it warrants tolling his time
and number barred second motion to reopen his removal proceedings.
Accordingly, we grant Gomez’s petition, vacate the BIA’s order denying his
second motion to reopen, and remand to the BIA for further proceedings consistent
with this opinion.
PETITION GRANTED; VACATED and REMANDED.
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