Martinez v. Attorney General

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________

No. 11-2258
________________

ERASMO ANIBAL MARTINEZ,

Petitioner

v.

ATTORNEY GENERAL OF THE
UNITED STATES,

Respondent
________________

On Petition for Review of a Final Order
of the Board of Immigration Appeals
Immigration Judge: Honorable Margaret Reichenberg
(No. A042-439-642)
_______________

Argued April 11, 2012

Before: MCKEE, Chief Judge, HARDIMAN, Circuit Judge
and JONES, II, * District Judge

(Opinion filed: September 6, 2012)

*
Honorable C. Darnell Jones, II, District Judge for the United
States District Court for the Eastern District of Pennsylvania,
sitting by designation.
1
Raquiba Huq
Claudine Langrin
Timothy Block
Shifra Rubin
Melville D. Miller, Jr.
Whitney Elliott, Esq. [ARGUED]
Legal Services of New Jersey
100 Metroplex Drive, Suite 402
P.O. Box 1357
Edison, New Jersey 08818-1357

Counsel for Petitioner

Tony West, Esq.
David V. Bernal, Esq.
Stuart S. Nickum. Esq. [ARGUED]
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044

Counsel for Respondent

____________

OPINION OF THE COURT
____________

JONES, II, District Judge.

Section 212(h) of the Immigration and Nationality Act
(“INA”) expressly bars from status adjustment a non-citizen
who has “previously been admitted to the United States as an
alien lawfully admitted for permanent residence” but later is
convicted of an aggravated felony. 8 U.S.C. § 82(h)(1)(C)(2).
This appeal presents a question of first impression in this
Circuit: whether someone who was accorded the designation
of “lawfully admitted for permanent residence” status upon
physical entry into the United States, but who in fact did not
substantively qualify for such designated status, is still barred
from Section 212(h) relief. We determine that “admission” as

2
an lawful permanent resident (“LPR”) in Section 212(h)
refers to a procedurally regular entry, not a substantively
compliant one. As we conclude here that the prohibition
holds, we will deny the petition for review.

I. Background

Petitioner Erasmo Anibal Martinez, a native of
Nicaragua, entered the United States without inspection in
1985. In October 1989, he married a United States citizen
(who bore his daughter later that year), and began the process
of adjusting his status to LPR. On September 15, 1990,
Martinez was arrested and later charged in a four-count
indictment before the Superior Court of New Jersey. On
December 7, 1990, he pleaded guilty to sexual assault under
N.J. Stat. § 2C:14-2b, admitting that he had touched the
vaginal area of his then-eight-year-old step-daughter.

In early 1991, after his plea but prior to his sentencing,
Martinez travelled to Nicaragua to complete the immigrant
visa application process. The United States consulate in
Nicaragua approved his application on March 5, 1991.
Martinez was admitted to the United States as a permanent
resident the following day. On March 22, 1991, two weeks
after he obtained permanent resident status, he was sentenced
to four years in prison. Martinez was released on parole on
November 9, 1992.

The Department of Homeland Security (“DHS”)
initiated removal proceedings against Martinez in August
2009, and Martinez ultimately conceded that he was
removable for having been convicted of an aggravated felony
for sexual abuse of a minor. See 8 U.S.C. §§
1227(a)(2)(A)(iii) (setting forth grounds for removability),
1101(a)(43)(A) (defining aggravated felony). Martinez
argued, however, that he was eligible for adjustment of status
under former INA Section 212(c), which waived the bar
against status adjustment for convicted aggravated felons in
the case of certain LPRs. 1 DHS responded that Martinez was

1
Waiver under former Section 212(c) required that an alien
have (1) at least seven years unrelinquished residence in the
United States; (2) at least five years as an LPR; and (3) not
3
not eligible for a Section 212(c) waiver because he had not in
fact been “lawfully admitted for permanent residence” (an
eligibility requirement under Section 212(c)): he had failed to
disclose his prior arrest and guilty plea on his original
application for permanent resident status. The Immigration
Judge (“IJ”) agreed.

In response, Martinez sought instead to readjust his
status under INA Section 212(h)(1)(A), which allows for
adjustment of alien status by the spouse, parent, son or
daughter of a United States citizen where denial of such
adjustment would constitute extreme hardship on either the
alien or the citizen. Section 212(h), however, expressly bars
from relief a non-citizen who has “previously been admitted
to the United States as an alien lawfully admitted for
permanent residence” but “since the date of admission . . . has
been convicted of an aggravated felony . . . .” 8 U.S.C. §
1182(h)(1)(C)(2). With some creativity, Martinez argued that
this bar could not apply to him because he was actually
inadmissible at the time he was granted LPR status due to his
failure to disclose his prior arrest and guilty plea at the time
he entered the United States as an LPR. 2

served more than five years in prison after final conviction for
an offense.
2
As the Board of Immigration Appeals points out, Martinez’s
conviction did not render him deportable under Section
237(a)(2)(A)(i) of the INA, 8 U.S.C. § 1227(a)(2)(A)(i),
because the offense resulting in the conviction was committed
before, rather than after, Martinez began adjusting his status
in the United States. Appendix for Petitioner (“Pet. App.”) 7a
(citing Matter of Alyazji, 25 I & N Dec. 397 (BIA 2011)). At
the very least, however, it was Martinez’s failure to disclose
his arrest and guilty plea that rendered him inadmissible at the
time he entered, because of “‘fraud or willfully
misrepresenting a material fact.’” Hing Sum v. Holder, 602
F.3d 1092, 1094 n.1 (9th Cir. 2010) (record did not establish
aggravated felony conviction but did establish arrest for said
felony) (quoting 8 U.S.C. § 1182(a)(6)(C)(i)); see Mwongera
v. I.N.S., 187 F.3d 323, 330 (3d Cir. 1999) (“knowledge of the
falsity of the representation will suffice” to establish
inadmissibility). As the Board notes, Martinez conceded
before the IJ that his conviction involved a crime of moral
4
 The IJ rejected Martinez’s argument. While
substantive satisfaction of LPR status was an underlying
requirement for Section 212(c) waiver, the IJ found that the
absence of such satisfaction did not equate to waiver of the
Section 212(h) bar. Specifically, the IJ held that the Board of
Immigration Appeals’ (“BIA”) decision in In re Ayala-
Arevalo, 22 I & N Dec. 398 (BIA 1998), controlled and
Martinez was statutorily ineligible for Section 212(h) relief.

Martinez timely appealed to the BIA, arguing that he
was eligible for Section 212(c) relief because the IJ erred in
concluding that Martinez had never been “lawfully admitted
for permanent residence.” In the alternative, Martinez
contended that if the BIA determined that he had never been
“lawfully admitted for permanent residence,” then it should
find him eligible for a Section 212(h) waiver, thus overruling
Ayala.

The BIA remained similarly unpersuaded. According
to the Board, Martinez was ineligible for 212(c) relief
because he had “never been lawfully admitted for permanent
residence,” but he was also ineligible for 212(h) relief:
“although [Martinez] has never been lawfully admitted for
permanent residence” in a substantive manner, he had
“previously been ‘admitted,’ even if that admission has
subsequently been ‘determined to have been . . . in violation
of law.’” Pet. App. 8a (quoting Ayala at 401 (ellipsis in the
original)). The Board concluded that Ayala compelled a
finding that Martinez’s aggravated felony conviction rendered
him ineligible for a waiver of inadmissibility under Section
212(h), and the BIA declined to overturn Ayala.

Martinez then timely filed a petition for review of the
Section 212(h) waiver question only, and later moved for a

turpitude; the IJ determined that such acknowledgement
rendered him inadmissible pursuant to 8 U.S.C. §
1182(a)(2)(A)(i)(I) (any alien “convicted of, or who admits
having committed . . . a crime involving moral turpitude . . . is
inadmissible.”). Pet. App. 7a & n.2.

5
stay of removal, which was granted. 3 The Newark
Immigration Court had jurisdiction under 8 C.F.R. §
1003.14(a) and the BIA had jurisdiction under 8 C.F.R. §§
1003.1(b)(3). As Martinez seeks review of a final order of
removal, this Court has jurisdiction under 8 U.S.C. § 1252(a).

II. Standard of Review

When, as here, the BIA affirms an IJ’s decision and
adds analysis of its own, we review both the IJ’s and the
BIA’s decisions. Dia v. Ashcroft, 353 F.3d 228, 243 (3d Cir.
2003) (en banc); Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d
Cir. 2001). We review de novo questions of law, such as the
proper construction of Section 212(h). Fadiga v. Att’y Gen.,
488 F.3d 142, 153 (3d Cir. 2007). Using all “traditional tools
of statutory construction,” we must determine “whether
Congress has directly spoken to the precise question at issue.”
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837, 842, 843 n.9 (1984). “If Congress has done so,
[our] inquiry is at an end; [we] ‘must give effect to the
unambiguously expressed intent of Congress.’” FDA v.
Brown & Williamson Tobacco Corp., 529 U.S. 120, 132
(2000) (quoting Chevron, 467 U.S. at 843). If, however, the
statute is “silent or ambiguous with respect to the specific
issue,” we must assess “whether the agency’s answer is based
on a permissible construction.” Chevron, 467 U.S. at 843. If
so, then we must defer to that construction. Id. at 845.

Unsurprisingly, Respondent urges us to apply Chevron
deference here. Martinez, however, argues on two grounds
that Chevron does not apply. First, Martinez claims that no
statutory ambiguity exists, such that Congress clearly
intended for the Section 212(h) waiver to apply to an
individual like Martinez. Second, Martinez claims that even
if such ambiguity does exist, it is for this Court to resolve
without deference to the BIA’s statutory construction, which
would be due only if the BIA itself had interpreted Section
212(h). According to Martinez, in Ayala the BIA explicitly

3
While the BIA addressed Martinez’s ineligibility for several
different waivers of inadmissibility for which Martinez had
applied, here Martinez appeals only the Section 212(h) waiver
issue.
6
found that Section 212(h) “clearly precluded” waiver
applicants such as himself; thus the BIA did not reach its own
construction of the statute, and therefore this Court should not
defer to the BIA’s application of Section 212(h).

Martinez cites exclusively to caselaw from the D.C.
Circuit and the Seventh Circuit in support of his argument
against Chevron deference. See Reply Brief for Petitioner
(“Pet. Reply”) at 7-8 (citing Arizona v. Thompson, 281 F.3d
248, 254 (D.C. Cir. 2002); Peter Pan Bus Lines, Inc. v. Fed.
Motor Carrier Safety Admin., 471 F.3d 1350, 1354 (D.C. Cir.
2006); Escobar Barraza v. Mukasey, 519 F.3d 388, 391 (7th
Cir. 2008); U.S. Postal Service v. Postal Regulatory Comm’n,
640 F.3d 1263, 1268 (D.C. Cir. 2011)). The Third Circuit has
not yet addressed the question of whether such deference is
“only appropriate when the agency has exercised its own
judgment, not when it believes that [its] interpretation is
compelled by Congress.” Thompson, 281 F.3d at 254
(internal quotation marks and citations omitted) (emphasis in
original). 4 For the reasons set forth below, however, we find
Section 212(h)’s statutory language free of ambiguity—

4
While not necessarily reaching the same ultimate
conclusions, the Fourth, Fifth, Ninth and Eleventh Circuits
have declined to accord explicit Chevron deference under
similar circumstances. See Bracamontes v. Holder, 675 F.3d
380, 386 (4th Cir. 2012) (“[T]he BIA’s interpretation of
Section 212(h) in the instant case fails the first prong of the
Chevron test…the statutory bar to a waiver of inadmissibility
is not ambiguous with respect to whom it applies.”); Martinez
v. Mukasey, 519 F.3d 532, 544 (5th Cir. 2008) (“[F]or the §
212(h) bar to apply: when the alien is granted permission,
after inspection, to enter the United States, he must then be
admitted as [a lawful permanent resident]. Accordingly, we
find no basis for the statutory language's being ambiguous.”);
Hing Sum, 602 F.3d at 1099 (“We need not resort to
legislative history because the statute is not ambiguous.”);
Lanier v. U.S. Att’y Gen., 631 F.3d 1363, 1367 (11th Cir.
2011); (Based on [Section 212(h)’s] unambiguous text, we
find that the statutory bar to relief does not apply to those
persons who . . . adjusted to lawful permanent resident status
while already living in the United States.”).
7
though not in the manner Martinez champions—and thus we
need not accord Chevron deference.

III. Analysis
A. Statutory Language

Section 212(h) provides one of the few avenues of
relief for non-citizens who would otherwise be eligible to
adjust their immigration status but for certain grounds of
inadmissibility, such as moral turpitude. In 1996, however, as
part of a larger immigration reform initiative, Congress
amended the statute to render fewer LPRs eligible for the
Section 212(h) waiver on aggravated felonies. See Illegal
Immigration Reform and Immigrant Responsibility Act of
1996 (“IIRIRA”), Pub. L. No. 104-208, div. C, §348, 110
Stat. 3009 (amending 8 U.S.C. §1182(h)). The statute
currently provides that “[n]o waiver shall be granted under
this subsection in the case of an alien who has previously
been admitted to the United States as an alien lawfully
admitted for permanent residence if . . . since the date of such
admission the alien has been convicted of an aggravated
felony . . . .” 8 U.S.C. § 1182(h)(1)(C)(2). 5

5
Prior to the 1996 amendment, the INA assessed status on the
basis of “entry” as opposed to “admission.” See 8 U.S.C. §
1101(a)(13) (1994) (defining “entry” as “any coming of an
alien into the United States, from a foreign port or place or
from an outlying possession, whether voluntarily or
otherwise”). Non-citizens who had “entered” the United
States were processed for deportation; those who had not
“entered” were sent into exclusion proceedings. Charles
Gordon, Stanley Mailman & Stephen Yale-Loehr, 1-1
IMMIGRATION LAW AND PROCEDURE § 1.03(2)(b) (2010). As
a result, “non-citizens who had entered without inspection
could take advantage of the greater procedural and
substantive rights afforded in deportation proceedings,” while
non-citizens who actually presented themselves to authorities
for inspection were restrained by “more summary exclusion
proceedings.” Hing Sum, 602 F. 3d at 1100. To remedy this
unintended and undesirable consequence, the IIRIRA
substituted “admission” for “entry,” and replaced deportation
and exclusion proceedings with the more general “removal”
proceeding.
8
 Thus, as our sister court in the Ninth Circuit has
explained so succinctly, Section 212(h) waivers are “available
to non-LPRs convicted of aggravated felonies, or non-citizens
who were convicted of an aggravated felony prior to their
admission as LPRs, but they are unavailable to non-citizens
who were convicted of an aggravated felony after their
admission as LPRs.” Hing Sum, 602 F.3d at 1095 (emphasis
in original) (citing In re Michel, 21 I & N Dec. 1101, 1104
(BIA 1998) (en banc) and United States v. Arrieta, 224 F.3d
1076, 1080-81 & n.2 (9th Cir. 2000)). As outlined above,
Martinez’s appeal rests on whether, despite his arrest and
guilty plea prior to adjusting to LPR status, he is eligible to
seek Section 212(h) relief. As the BIA opinion notes, the IJ
found that Martinez was “previously admitted . . . as an alien
lawfully admitted for permanent residence” within the
meaning of Section 212(h), that he was subsequently
convicted for an aggravated felony, and that he was therefore
barred from pursuing Section 212(h) relief. Pet. App. 116a. 6
Martinez contends, however, that precisely because he

6
Since the INA’s 1996 amendment, the term “conviction”
means:
with respect to an alien, a formal judgment of guilt of
the alien entered by a court or, if adjudication of guilt
has been withheld, where (i) a judge or jury has found
the alien guilty or the alien has entered a plea of guilty
or nolo contendere or has admitted sufficient facts to
warrant a finding of guilt, and (ii) the judge has
ordered some form of punishment, penalty or restraint
on the alien’s liberty to be imposed.
8 U.S.C. § 1101(a)(48)(A) (emphasis added). Martinez
pleaded guilty on December 7, 1990 but was not sentenced
until March 22, 1991—two weeks after his relevant entry into
the United States on March 6, 1991. Accordingly, as the BIA
found, he was not “convicted” of an aggravated felony until
after his admission. See Pet. App. 6a (citing Perez v. Elwood,
294 F.3d 552, 562 (3d Cir. 2002) (alien’s “conviction”
occurred not when he was tried and found guilty by jury but
on date sentence was imposed))). In any event, Martinez
does not contest that he was “convicted” subsequent to his
March 1991 admission, despite tendering his guilty plea prior
to his admission, and thus waives any potential argument on
that ground.
9
attained LPR status through fraud or misrepresentation, he
was never lawfully admitted and thus Section 212(h) cannot
bar his status adjustment now.

B. Application

The INA defines “admitted” as the “lawful entry of the
alien into the United States after inspection and
authorization by an immigration officer,” 8 U.S.C. §
1101(a)(13)(A)—in other words, a procedurally
regular admission into the United States, not
necessarily a substantively lawful one. The term
“lawfully admitted for permanent residence,” in turn,
is defined 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).

Thus, an alien permitted to enter the United States by
an immigration officer has been “admitted” even if he did not
meet the substantive legal requirements for admission at that
time, although he was not “lawfully admitted for permanent
residence” under the INA unless he were substantively in
compliance with those admission requirements. See Emokah
v. Mukasey, 523 F.3d 110, 118 (2d Cir. 2008) (admission
obtained by using fraudulent visa still constitutes
“admission”); Borrego v. Mukasey, 539 F.3d 689, 691-93
(same); compare to Matter of Koloamatangi, 23 I & N Dec.
548, 551-52 (BIA 2003) (LPR who obtained status by
fraudulent marriage to United States citizen was not “lawfully
admitted”).

The Third Circuit has previously deferred to the BIA’s
interpretation 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,’” and that such individuals are
therefore ineligible for waivers of inadmissibility. Gallimore
v. Att’y Gen., 619 F.3d 216, 224-25 (3d Cir. 2010). However,
Gallimore concerned interpretation of former Section 212(c)
of the INA. Like Section 212(h), Section 212(c) employed

10
the phrase “lawful permanent resident,” but without the
crucial modifying language of “previously been admitted . . .
as.” See De La Rosa v. DHS, 489 F.3d 551, 554-55 (2d Cir.
2007); 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); Matter of Longstaff, 716 F.2d 1439, 1441-42
(5th Cir. 1983). Along the same lines, other circuits have
isolated Section 212(c)’s “lawfully admitted for permanent
residence” from the preceding language “previously been
admitted,” but those cases did not involve interpreting the
fully expanded modifier: “previously been admitted…as”
(emphasis added). See Bracamontes, 675 F.3d at 388; Lanier
v. Att’y Gen., 631 F.3d at 1366; Martinez, 519 F.3d at 546. In
other words, the Fourth, Fifth and Eleventh Circuits focused
on the word “lawfully” in defining “admission.” We, on the
other hand, agree with the Ninth Circuit that the controlling
phrase here is not “lawfully admitted for permanent
residence,” but rather the preceding phrase, “previously been
admitted to the United States . . . as.” Hing Sum, 602 F.3d
1092, 1097 (distinguishing Martinez). 7

Only one federal appellate court has confronted
precisely the same issue that Martinez now raises. In Hing
Sum, the petitioner was arrested and allegedly convicted for a
state law violation three years before being admitted to the
United States as an LPR. Ten years after his admission, he
was convicted on federal counterfeiting conspiracy charges,
and the government commenced removal proceedings based
on this latter conviction. Like Martinez, Sum sought a waiver
under Section 212(h), “arguing that he was not subject to the
bar on § 212(h) relief because he was actually inadmissible at
the time he obtained LPR status either because of his 1987
conviction or because of his failure to disclose that conviction
when he entered as an LPR in 1990.” Id. at 1094 (footnote
omitted).

7
Bracamontes, Lanier, and Martinez are further
distinguishable from the instant case in that the petitioners in
those cases were not granted LPR status until they were
already physically present in the United States. See
Bracamontes, 675 F.3d at 382; Lanier, 631 F.3d at 1365;
Martinez, 519 F.3d at 536.
11
 Hing Sum, in turn, cites Ayala with approval. 8 In
Ayala, the BIA rejected the petitioner’s argument—identical
to Martinez’s position here—that the waiver bar did not apply
to him:

While the language of section 212(h)
distinguishes those who have been previously
admitted for permanent residence from those
who have not . . . , the statute does not, either
expressly or by implication, distinguish those
whose admission was lawful and those were
who were previously admitted for lawful
permanent residence but are subsequently
determined to have been admitted in violation
of the law. To read such a distinction into the
statute would be arbitrary and capricious.

Ayala, 22 I & N at 401. Indeed, to find otherwise would be to
focus on the statutory language of “lawfully admitted” to the
complete exclusion of “previously been admitted
. . . as.” Id. The Hing Sum court noted that “Ayala’s criminal
activity at the time of admission did not alter ‘the historical
fact that, when he entered, it was in the status of a lawful
permanent resident.’” Hing Sum, 602 F.3d at 1098 (quoting
Ayala, 22 I & N at 401). According to the Ninth Circuit,
“[t]he same reasoning applies to Sum.” Hing Sum, 602 F.3d
at 1098.

We agree and apply that reasoning to Martinez here.
When the definition of “admitted” is considered in the context
of the Section 212(h) waiver bar, the statutory imperative to
define admission in terms of procedural regularity, as
opposed to substantive satisfaction, is clear. “[P]reviously
admitted…as an alien lawfully admitted for permanent
residence” must be read as one phrase; to read the “lawfully
admitted” portion in isolation would render “previously

8
The First, Fourth and Eleventh Circuits have also approved
of Ayala, albeit in different contexts. See Onwuamaegbu v.
Gonzales, 470 F.3d 405, 408-09 (1st Cir. 2006); Savoury v.
U.S. Att’y Gen., 449 F.3d 1307, 1315 (11th Cir. 2006);
Obioha v. Gonzales, 431 F.3d 400, 409 n.10 (4th Cir. 2005).
12
admitted as” superfluous. “If Congress intended § 212(h) to
bar only ‘alien[s] lawfully admitted for permanent residence,’
there would be no need to describe those non-citizens as also
‘previously . . . admitted to the United States.’” Hing Sum,
602 F.3d at 1097 (quoting Onwuamaegbu v. Gonzales, 470
F.3d 405, 409 (1st Cir. 2006); citing Romero-Ruiz v.
Mukasey, 538 F.3d 1057, 1062 (9th Cir. 2008)).

Additionally, to adopt Martinez’s proposed substantive
reading of the statute would fly in the face of Section 212(h)’s
evident intent. “By using the term ‘previously admitted,’
rather than (for example) ‘previously and lawfully admitted,’
Congress demonstrated that it specifically intended to
penalize those immigrants who sought and gained LPR status
only to abuse its benefits.” Onwuamaegbu, 470 F.3d at 409;
accord Taniguchi v. Schultz, 303 F.3d 950, 958 (9th Cir.
2002) (finding rational basis for denying Section 212(h)
waivers to non-citizens convicted of aggravated felony after
admission as LPRs; because LPRs “enjoy substantial rights
and privileges not shared by other aliens,” they should be held
to a “higher standard and level of responsibility than non-
LPRs”). Indeed, to conclude otherwise would undermine the
IIRIRA’s stated purpose. See Bamba v. Riley, 366 F.3d 195,
202-03 (3d Cir. 2004) (INA “evince[s] a broad Congressional
intent to expedite the removal of criminal aliens”); Zhang v.
I.N.S., 274 F.3d 103, 108 (2d Cir. 2001) (“[I]t is beyond cavil
that one of Congress’s principal goals in enacting IIRIRA was
to expedite the removal of aliens who have been convicted of
aggravated felonies.”). 9 Like the Ninth Circuit, we can
discern “no reason why Congress would give a pass to non-

9
Martinez, for his part, argues that it is our reading of Section
212(h) that would lead to “perverse results when applied to
other federal statutes,” such as legislation relating to an
alien’s eligibility for public benefits such as food stamps or
supplemental security income. Brief for Petitioner at 25.
However, the statutes suggested by Martinez are not part of
the INA and therefore not administered by the BIA;
accordingly, the BIA’s construction of Section 212(h)’s
statutory language is irrelevant as to benefits eligibility. See 8
U.S.C. §§ 1101-1537; 42 U.S.C. §§ 1381 et seq.; 7 U.S.C. §§
2013, 2020.

13
citizens who had fraudulently obtained LPR status while
barring from relief non-citizens who had legitimately
obtained LPR status.” Hing Sum, 602 F.3d at 1097 (citation
omitted); see United States v. Wilson, 503, U.S. 329, 334
(1992) (citing United States v. Turkette, 452 U.S. 576, 580
(1981) (when interpreting statutes, “absurd results are to be
avoided”)). 10

IV. Conclusion

Section 212(h)’s statutory language, construction, and
evolution make clear that “admission” and “admitted” refer,
as in the INA’s definition, to inspection and authorization by
any immigration officer at the port of entry. See 8 U.S.C. §
1101(a)(13)(A). As Martinez was admitted following such
procedures, after failing to disclose his arrest and subsequent
conviction for an aggravated felony, the Section 212(h)
waiver bar applies. For these reasons, we deny the petition for
review.

_______________________________

10
Despite clearly “absurd results,” other circuits have
concluded that Congress may have had rational reasons for
employing statutory language that, in the eyes of those
circuits, unambiguously excepted aggravated felons convicted
post-LPR admission from the waiver bar. See Bracamontes,
675 F.3d at 388; Martinez, 519 F.3d at 545. However, as
discussed above, those circuits considered the import of the
phrase “previously been admitted” but not in its complete
modifying context of “previously been admitted…as.” See
supra, at 11-12.
14