Saintha v. Mukasey

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

MACKENTOCH SAINTHA, 
Petitioner,
v.
 No. 06-2304
MICHAEL B. MUKASEY, Attorney
General of the United States,
Respondent.

On Petition for Review of an Order
of the Board of Immigration Appeals.
(A25-448-372)

Argued: November 1, 2007

Decided: February 14, 2008

Before GREGORY and DUNCAN, Circuit Judges, and
James A. BEATY, Jr., Chief United States District Judge
for the Middle District of North Carolina, sitting by designation.

Petition for review dismissed in part and denied in part by published
opinion. Judge Duncan wrote the opinion, in which Judge Gregory
and Judge Beaty joined.

COUNSEL

ARGUED: John R. Ingrassia, PROSKAUER & ROSE, L.L.P.,
Washington, D.C.; Elizabeth Hutton McGrail, CAPITAL AREA
IMMIGRANTS’ RIGHTS COALITION, Washington, D.C., for Peti-
tioner. Janice Kay Redfern, Office of Immigration Litigation,
2 SAINTHA v. MUKASEY
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent. ON BRIEF: Peter D. Keisler, Assistant Attor-
ney General, Civil Division, Linda S. Wernery, Assistant Director,
Office of Immigration Litigation, UNITED STATES DEPART-
MENT OF JUSTICE, Washington, D.C., for Respondent.

OPINION

DUNCAN, Circuit Judge:

The petitioner, Mackentoch Saintha ("Saintha"), was admitted to
this country as a refugee and was subsequently granted lawful perma-
nent resident status. When later convicted of an aggravated felony and
placed into removal proceedings, Saintha sought relief pursuant to
Article 3 of the United Nations Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (the "CAT"),
Dec. 10. 1984, 23 I.L.M. 1027, 1465 U.N.T.S. 85, and under section
209 of the Immigration and Nationality Act (the "INA"), codified at
8 U.S.C. § 1159(c). An Immigration Judge ("IJ") found Saintha enti-
tled to deferral of removal under the CAT, but ineligible for adjust-
ment of status and a waiver of inadmissibility under the INA. On
review, the Board of Immigration Appeals ("BIA") found insufficient
evidence to sustain the CAT claim, but agreed with the IJ that Saintha
was ineligible for the relief he sought under the INA. Saintha’s peti-
tion asks us to review both BIA determinations. For the reasons that
follow, we dismiss the portion of Saintha’s petition requesting relief
under the CAT for lack of jurisdiction pursuant to 8 U.S.C.
§ 1252(a)(2)(C), and we deny the petition as to Saintha’s requests for
adjustment of status and a waiver of inadmissibility under the INA.

I.

Saintha, along with his family, fled his native Haiti in 1994 to
escape political violence. He was subsequently admitted to the United
States as a refugee pursuant to 8 U.S.C. § 1157. In October 1995, he
sought and was granted an adjustment to lawful permanent resident
("LPR") status under section 209(a) of the INA, 8 U.S.C. § 1159(a),
retroactive to his admission date. After multiple convictions for petty
 SAINTHA v. MUKASEY 3
larceny, Saintha was convicted of robbery and sentenced to fifteen
years’ confinement.1 As a result of this aggravated felony conviction,
the government charged him with removability under 8 U.S.C.
§ 1227(a)(2)(A)(iii). See id. ("Any alien who is convicted of an aggra-
vated felony at any time after admission is deportable.")

In the ensuing removal proceedings, Saintha sought deferral of
removal pursuant to the implementing regulations of the CAT. See 8
C.F.R. §§ 208.16(c), 208.17(a), 208.18(b)(1). To be entitled to defer-
ral of removal, the applicant must "establish that it is more likely than
not that he [will] be tortured if removed to the proposed country of
removal."2 8 C.F.R. § 208.16(c)(2). An act is not "torture" for CAT
purposes unless it is "inflicted by or at the instigation of or with the
consent or acquiescence of a public official or other person acting in
an official capacity." 8 C.F.R. § 208.18(a)(1).

Saintha argued at his removal hearing that, if he were returned to
Haiti, he would more likely than not be tortured with the acquiescence
of the Haitian government in retribution for the involvement of his
stepfather, Edy Lorisme, in the political party Organisation Populaire
de Bon-Repos ("OPB").3 In support of Saintha’s claim, Lorisme testi-
fied that his sister was beaten and killed in 1988 because of her affili-
ation with OPB. Saintha and Lorisme also both testified to an instance
in 1992 when Lorisme’s political opponents came to the family’s
home in the early hours of the morning and ordered Lorisme outside.
According to Saintha, Lorisme did not leave the house and the group
dispersed without further incident. After this episode, however,
1
Ten years of Saintha’s sentence were subsequently suspended.
2
The implementing regulations define torture as "any act by which
severe pain or suffering, whether physical or mental, is intentionally
inflicted on a person for such purposes as obtaining from him or her or
a third person information or a confession, punishing him or her for an
act he or she or a third person has committed or is suspected of having
committed, or intimidating or coercing him or her or a third person, or
for any reason based on discrimination of any kind." 8 C.F.R.
§ 208.18(a)(1).
3
OPB was formed to oppose Jean-Claude "Baby Doc" Duvalier and his
supporters, including General Cedras—the leader of the Haitian govern-
ment at the time OPB was founded.
4 SAINTHA v. MUKASEY
Lorisme sought and obtained refugee status for himself and his fam-
ily, and they fled Haiti for the United States.

Saintha and Lorisme further testified that their friends and relatives
continued to be victimized by politically motivated violence after
their departure. They explained that shortly after the family’s arrival
to the United States, a friend and political ally and his wife were
killed in Haiti in retaliation for their political activities. They also
alleged that Lorisme’s political enemies forced Lorisme into hiding
when he visited Haiti in 2003, and that these enemies subsequently
burned Saintha’s grandmother to death. Shortly after Lorisme’s return
to the United States, the family learned that a cousin of Saintha’s had
also been killed. Although unaware of the details of the cousin’s
death, Saintha and Lorisme insisted that she was killed for her politi-
cal beliefs.

As to the Haitian government’s involvement, Lorisme testified that
he did not know "what power [the Haitian police] have . . . to protect"
his son, and that the police did not protect anyone. J.A. 123. Saintha
submitted as additional evidence the State Department’s 2005 Coun-
try Report on Human Rights Practices in Haiti. The Report indicated
that there was widespread political corruption in Haiti, that prison
conditions were substandard, and that the Haitian police were guilty
of human rights violations and did little to protect Haitian citizens.

During the removal proceedings, Saintha also sought relief in the
form of an adjustment of status under 8 U.S.C. § 1159(a), and in con-
junction with that adjustment, a waiver of inadmissibility under
§ 1159(c). Saintha sought such relief because, though he had previ-
ously been granted LPR status, the imminent removal order would
strip him of such status and with it the consequent right to remain
legally in the United States indefinitely as a lawful permanent resi-
dent. See 8 C.F.R. § 1001.1(p). Furthermore, even if he were granted
deferral of removal under the CAT, he still would not have regained
his permanent resident status. See 8 C.F.R. § 208.17(d). Such deferral,
if granted, would also be subject to termination in the future if an
immigration judge determined that it was no longer likely that Saintha
would be tortured in the country to which he would be removed. See
id. In light of these limits to CAT relief, Saintha therefore sought to
adjust a second time to LPR status under § 1159(a) in order to remain
 SAINTHA v. MUKASEY 5
in the United States permanently. His multiple criminal convictions,
however, rendered him inadmissible, and therefore ineligible for
adjustment of status. See 8 U.S.C. § 1182(a)(2)(B) ("Any alien con-
victed of 2 or more offenses . . . , regardless of whether the conviction
was in a single trial or whether the offenses arose from a single
scheme of misconduct and regardless of whether the offenses
involved moral turpitude, for which the aggregate sentences to con-
finement were 5 years or more is inadmissible."). Accordingly, he
was unable to adjust his status absent a discretionary waiver of inad-
missibility, pursuant to § 1159(c), from either the Secretary of Home-
land Security or the Attorney General.

On April 10, 2006, the IJ found Saintha removable as charged. The
IJ then granted his request for deferral of removal under the CAT, but
found him ineligible for an adjustment to LPR status and a waiver of
inadmissibility under the INA. These rulings prevented Saintha from
being immediately removed to Haiti, but left open that possibility in
the future should the country conditions improve. Both Saintha and
the government appealed their respective unfavorable rulings to the
BIA.

In an opinion issued November 16, 2006, the BIA reversed the IJ’s
decision finding Saintha eligible for relief under the CAT, but
affirmed the IJ’s decision as to Saintha’s request for adjustment of
status and waiver of inadmissibility. Regarding Saintha’s CAT claim,
the BIA found (1) no clear error in the IJ’s findings of fact; (2) that
the Haitian government and Lorisme’s enemies would have the ability
to learn of Saintha’s return to Haiti; and (3) that it was more likely
than not that Lorisme’s enemies would seek to torture Saintha. The
BIA nevertheless denied the claim, finding that, "upon considering
the record in its totality there is insufficient evidence . . . that the Hai-
tian government would acquiesce in [Saintha’s] torture." J.A. 292.

As to Saintha’s requests for relief under the INA, the BIA found
that under the plain language of § 1159(a)(1) a refugee who has
already acquired LPR status is precluded from subsequently re-
adjusting to LPR status. Inasmuch as Saintha could not seek adjust-
ment of status, he was likewise ineligible to seek a waiver of inadmis-
sibility under § 1159(c). Saintha filed a timely appeal and obtained a
temporary stay of removal on January 9, 2007.
6 SAINTHA v. MUKASEY
II.

Saintha first argues that the BIA erred in finding insufficient evi-
dence to conclude that the Haitian government would likely acquiesce
in his torture, and in finding him ineligible for deferral of removal
under the CAT as a result. Before we reach the merits of that argu-
ment, however, we must first determine whether we have jurisdiction
to consider Saintha’s claim. The government contends that we do not,
asserting that because Saintha is removable by reason of an aggra-
vated felony conviction and has not, in its view, raised a constitu-
tional claim or question of law, the INA precludes judicial review of
his claim. We consider the issue de novo. See Rux v. Republic of
Sudan, 461 F.3d 461, 467 (4th Cir. 2006).

A.

Courts generally do not have jurisdiction to review final orders of
removal against aliens charged with removability by reason of having
committed aggravated felonies. See 8 U.S.C. § 1252(a)(2)(C);
§ 1227(a)(2)(A)(iii). Because Saintha has conceded that he was con-
victed of an offense that constituted an aggravated felony, we would
ordinarily be without jurisdiction to consider his claims. The REAL
ID Act ("REAL ID"), however, provides a limited exception to this
jurisdictional bar. Pub. L. No. 109-13, § 106(a)(1)(A)(iii), 119 Stat.
231, 302-23 (codified in part at § 1252(a)(2)(D)). Section
1252(a)(2)(D) of the Act allows for "review of constitutional claims
or questions of law raised upon a petition for review filed with an
appropriate court of appeals."

This court has previously recognized the narrow scope of this
exception. See Higuit v. Gonzales, 433 F.3d 417, 419 (4th Cir. 2006)
(holding that REAL ID "confers upon courts of appeals a narrowly
circumscribed jurisdiction to resolve constitutional claims or ques-
tions of law."). We have held, consonant with the other circuit courts
of appeal, that even after the passage of REAL ID, we still lack juris-
diction to review factual determinations of the BIA. See Jean v. Gon-
zales, 435 F.3d 475, 480 (4th Cir. 2006); Conteh v. Gonzales, 461
F.3d 45, 63 (1st Cir. 2006) ("This proscription extends to review of
the BIA’s factual findings as to credibility, evidentiary weight, and
satisfaction of a correctly framed burden of proof."); see also H.R.
 SAINTHA v. MUKASEY 7
Rep. No. 109-1268, at H2873 (2005), available at 2005 WL 1025891
(legislative history of the REAL ID Act explaining that "[t]he purpose
of [the REAL ID Act] is to permit judicial review over those issues
that were historically reviewable on habeas—constitutional and
statutory—construction questions, not discretionary or factual ques-
tions."). Thus, before we can reach the merits of Saintha’s arguments,
we must first decide the threshold question of whether his petition
raises a constitutional claim or a question of law such that the REAL
ID exception applies, or instead raises only factual questions, strip-
ping us of our jurisdiction over the petition.

B.

Saintha’s petition seeks review of the BIA’s rejection of his CAT
claim. As noted above, the BIA found it probable that the enemies of
Saintha’s stepfather would seek to torture Saintha upon his return to
Haiti. The BIA further found, however, that "upon considering the
record in its totality there is insufficient evidence for us to conclude
that it is more likely than not that the Haitian government would
acquiesce in [his] torture." J.A. 292. The crux of the jurisdictional
question here, then, is whether this BIA determination with respect to
Haitian government acquiescence is properly characterized as factual
or legal in nature.

Saintha wisely does not argue that his challenge raises a constitu-
tional claim or a pure question of law. Rather, he asserts that this case
presents a mixed question of law and fact, and that we retain jurisdic-
tion as to the legal component of that question. See H.R. Rep. No.
109-1268, at H2873 (2005), available at 2005 WL 1025891 ("When
a court is presented with a mixed question of law and fact, the court
should analyze it to the extent there are legal elements, but should not
review any factual elements."). The government predictably disagrees
with that characterization of the BIA’s determination. Saintha’s claim,
the government asserts, does not concern a "question of law" because
such questions, for REAL ID purposes, include only the narrow cate-
gory of issues regarding statutory construction.4 Instead, the govern-
4
There is disagreement among the circuits regarding whether questions
of law are limited to questions of statutory interpretation or also include
mixed questions of law and fact. We need not resolve the issue here
because our precedent dictates that we treat Saintha’s claim as a factual
inquiry.
8 SAINTHA v. MUKASEY
ment reasons, Saintha’s claim is merely "an attempt to circumvent
[Section 1252(a)(2)(C)’s] jurisdictional bar by inviting this [c]ourt to
reweigh the evidence relevant to a [BIA] factual determination."
Respondent’s Br. at 41.

Although we have never addressed the precise question of our
jurisdiction to review, post-REAL ID, an aggravated felon’s petition
challenging a BIA determination regarding government acquiescence
in torture for CAT purposes, we do not have to look far to find com-
pelling guidance as to the appropriate analytical framework. This
court has previously concluded that BIA factual determinations
include those which we would review, if we were to have jurisdiction,
under the "substantial evidence" standard.5 See Menghesha v. Gon-
zales, 450 F.3d 142, 147 (4th Cir 2006) (referring to the substantial
evidence standard as "the extremely deferential standard of review
applicable to [BIA] factual determinations."); see also Haoua v. Gon-
zales, 472 F.3d 227, 231 (4th Cir. 2007) (same). That is, we can look
to the standard of review we would apply if we were to have jurisdic-
tion to inform whether a given BIA determination is factual or legal
in nature.

The legislative history of the REAL ID Act confirms precisely this
point:

Factual questions include those questions that courts would
review under the "substantial evidence" or 242(b)(4)(B)
[codified as 8 U.S.C. § 1252(b)(4)(B)] standard, reversing
only when a reasonable factfinder would be compelled to
conclude that the decision below was erroneous.

H.R. Rep. No. 109-1268, at H2873 (2005), available at 2005 WL
1025891. Combining our precedent, as bolstered by the legislative
history, with the § 1252(a)(2)(D) proscription, we conclude that BIA
determinations that we would ordinarily review under the substantial
evidence standard are necessarily factual in nature, and therefore
5
In contrast, legal determinations include those which we would
review de novo. See Menghesha v. Gonzales, 450 F.3d 142, 147 (4th Cir.
2006).
 SAINTHA v. MUKASEY 9
beyond our jurisdiction to review when the petitioner has been con-
victed of an aggravated felony.

The question of jurisdiction here, then, turns on whether the BIA’s
determination as to Haitian government acquiescence would ordinar-
ily be reviewed for substantial evidence. Our precedent declares that
it would be. See Dankam v. Gonzales, 495 F.3d 113, 124 (4th Cir.
2007) ("We review the denial of relief under the CAT for substantial
evidence."); Haoua, 472 F.3d at 232-33 (applying the "substantial
evidence" standard of review to a BIA finding concerning the likeli-
hood that the petitioner would suffer torture at the government’s con-
sent or acquiescence). Because we review determinations regarding
governmental acquiescence for substantial evidence, and because we
only apply that standard to factual determinations, the BIA’s CAT
determination here is properly characterized as factual, not legal, in
nature.6 Id., see also Dragenice v. Gonzales, 470 F.3d 183, 185 (4th
Cir. 2006) (referring to the IJ’s conclusion "that the evidence did not
establish a likelihood of torture" as a "factual determination"). Sec-
tion 1252(a)(2)(C) of the REAL ID Act prohibits our review of such
factual determinations of the BIA, and we are thus unable to review
Saintha’s petition on the merits.

Notwithstanding this conclusion, dictated by our precedent, Saintha
repackages his primary argument in various ways in an attempt to
create a reviewable legal question where there is none. For example,
Saintha professes to challenge the BIA’s interpretation of the term
"acquiescence," claiming that the BIA "fail[ed] to recognize the inher-
ent difference between a government that cannot control torture by
private actors and a government that ‘acquiesces’ by turning a blind
eye toward such conduct." Reply Br. at 13. As Saintha acknowledges,
however, the BIA properly concluded that willful blindness could
6
Oddly, Saintha appears at times to concede just this conclusion. For
example, he acknowledged that the case presented a factual determina-
tion in his argument before the IJ, J.A. 74, and again in this appeal, see
Reply Br. at 11 (referring to the BIA’s conclusion regarding the likeli-
hood of government acquiescence as a "factual determination" properly
reviewed under the "‘substantial evidence’ standard of review"). Because
he elsewhere argues the opposite, however, we have not treated these
apparent concessions as dispositive.
10 SAINTHA v. MUKASEY
constitute acquiescence, but ultimately rejected his claim because the
evidence did not demonstrate that the Haitian government would
likely remain willfully blind to his risk of torture. See J.A. 292-93;
Petitioner’s Br. at 16. In actuality, then, Saintha is asking us to reach
the merits of his CAT claim and reweigh the evidence as to the BIA’s
acquiescence determination; not, as he claims, presenting the legal
question of the proper interpretation of "acquiescence."

Saintha next attempts to craft a question of law by suggesting that
the BIA did not afford the appropriate deference to the facts as deter-
mined by the IJ. Saintha later admits, however, that the BIA cited the
appropriate legal standards in its decision, and he points to no specific
language in the BIA’s opinion where those standards were misap-
plied. His argument, in substance, is simply that the BIA did not show
the appropriate deference to the IJ by disagreeing with the IJ’s
government-acquiescence determination. This argument too, then,
devolves into another circuitous attack on the BIA’s factual determi-
nation regarding acquiescence, over which, as we have already con-
cluded, we lack jurisdiction.

Saintha finally seeks to create a justiciable question by arguing that
"the BIA misapplied its own precedent with respect to evaluating
[Saintha’s] risk of torture." Reply Br. at 14. Rather than identifying
BIA precedent that would mandate a different conclusion in his own
case, however, Saintha only posits vaguely that the BIA should be
required to distinguish his case from prior BIA decisions. Again,
because Saintha does not point to any standard that the BIA misap-
plied, this argument would have us reweigh the evidence in Saintha’s
case as compared to the weighing done in past BIA cases, which is
precisely the type of factual re-hashing we must not do.

We decline to stretch reason to locate questions of law in what we
have properly analyzed as a factual determination. As this court has
previously recognized, "[w]e are not free to convert every immigra-
tion case into a question of law, and thereby undermine Congress’s
decision to grant limited jurisdiction over matters committed in the
first instance to the sound discretion of the Executive." Higuit v. Gon-
zales, 433 F.3d 417, 420 (4th Cir. 2006). Accordingly, we look to the
true nature of Saintha’s arguments and conclude that they do not fall
within one of the REAL ID Act’s rubrics. Thus, because Saintha is
 SAINTHA v. MUKASEY 11
removable by reason of an aggravated felony conviction, § 1252(a)
(2)(C) prohibits our evaluation of his CAT claim. We therefore dis-
miss this portion of the petition for review for lack of jurisdiction.7

III.

Saintha next challenges the BIA’s determination that he is statu-
torily precluded from seeking adjustment of status and a waiver of
inadmissibility under § 1159 of the INA. This claim turns squarely on
an issue of statutory interpretation. We therefore have jurisdiction to
review this aspect of the petition pursuant to the REAL ID Act. See
8 U.S.C. § 1252(a)(2)(D).

We review de novo the BIA’s decision on a question of law. See
Blanco de Belbruno v. Ashcroft, 362 F.3d 272, 278 (4th Cir. 2004).
As the BIA is the agency charged with administering the INA, how-
ever, its interpretations of the statute are entitled to deference as artic-
ulated in Chevron U.S.A. Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 842-43 (1984). See INS v. Aguirre-Aguirre, 526
U.S. 415, 424 (1999). Pursuant to Chevron, the plain meaning of the
statute controls if the provision in question is unambiguous. 467 U.S.
at 843. If, however, the statute is silent or ambiguous with respect to
the specific issue before us, the question for this court becomes
whether the BIA’s interpretation "is based on a permissible construc-
tion of the statute." See id. A petitioner asking the court to find a BIA
interpretation impermissible faces a substantial burden, as judicial
deference "is especially appropriate in the immigration context where
officials exercise especially sensitive political functions that implicate
questions of foreign relations." Aguirre-Aguirre, 526 U.S. at 425
(internal quotations omitted).
7
We note briefly that even if we were not stripped of jurisdiction by
§ 1252(a)(2)(C)-(D) to hear Saintha’s claim, it would likely fail because
there exists substantial evidence to support the BIA’s determination.
Saintha, failed to make the requisite showing that the Haitian govern-
ment was aware of, let alone willfully blind to, the violence suffered by
his family members and his stepfather’s political allies. See 8 C.F.R.
§ 208.18. Thus, we would likely conclude that the BIA relied on substan-
tial evidence in finding a lack of government acquiescence.
12 SAINTHA v. MUKASEY
As discussed above, Saintha had become a lawful permanent resi-
dent, entitled to remain in the United States indefinitely. By virtue of
his aggravated felony conviction, however, he is now removable, and
entry of a removal order would strip him of his LPR status. In the
course of his removal proceedings, Saintha sought, as an alternative
and in addition to CAT relief, an adjustment of status back to that of
a lawful permanent resident. The criteria governing adjustment of sta-
tus are provided by section 209 of the INA, codified at 8 U.S.C.
§ 1159:

§ 1159. Adjustment of status of refugees

(a) Criteria and procedures applicable for admission as
immigrant; effect of adjustment.

(1) Any alien who has been admitted to the United States
under [8 U.S.C. § 1157] . . .

(A) whose admission has not been terminated . . .

(B) who has been physically present in the United
States for at least one year, and

(C) who has not acquired permanent resident sta-
tus,

shall, at the end of such year period, return or be returned
to the custody of the Department of Homeland Security for
inspection and examination for admission to the United
States as an immigrant . . . .

(2) Any alien who is found upon inspection and examina-
tion by an immigration officer pursuant to paragraph (1) or
after a hearing before an immigration judge to be admissible
(except as otherwise provided under subsection (c)) as an
immigrant under this Act at the time of the alien’s inspec-
tion and examination shall . . . be regarded as lawfully
admitted to the United States for permanent residence as of
the date of such alien’s arrival into the United States. . . .
 SAINTHA v. MUKASEY 13
(b) . . . .

(c) . . . . [T]he Secretary of Homeland Security or the Attor-
ney General may waive [the application of any inadmissibil-
ity provision] with respect to [any alien seeking adjustment
of status under this section] for humanitarian purposes, to
assure family unity, or when it is otherwise in the public
interest.

Id. (emphasis added). The parties agree that this statute requires an
alien to be "admissible" before he can be granted adjustment of status.
Saintha concedes that his felony convictions render him inadmissible.
Thus, his request for adjustment of status under § 1159(a) is accompa-
nied, as it must be, by a request for waiver of inadmissibility under
§ 1159(c).

The parties disagree, however, as to the proper interplay of subsec-
tions (a)(1) and (a)(2). The government suggests that subsection (a)(1)
provides three criteria that must be satisfied by any alien seeking
adjustment of status, regardless of whether a Department of Home-
land Security ("DHS") officer determines the alien’s compliance with
such criteria (as suggested in subsection (a)(1)) or an IJ makes the
determination (as suggested in subsection (a)(2)). Put differently, the
government views subsection (a)(2) to simply acknowledge that, for
aliens in removal proceedings, the determinations usually made by
DHS officials are instead consolidated before the IJ so that the alien’s
legal status can be adjudicated holistically. See Perez-Vargas v. Gon-
zales, 478 F.3d 191, 194 (4th Cir. 2007) (recognizing that, once an
alien is in removal proceedings, the presiding IJ has jurisdiction to
decide questions of adjustment of status, which determination would
otherwise be made by DHS officials). Because Saintha does not sat-
isfy the third criterion of § 1159(a)(1)—i.e., that the alien "has not
acquired permanent resident status,"—the government concludes that
he cannot be eligible for adjustment of status, whether before a DHS
official or an IJ.

Saintha argues, on the contrary, that subsection (a)(1) is directed
only to newly admitted refugees, while subsection (a)(2) applies both
to newly admitted refugees and to those who are seeking an adjust-
ment in immigration proceedings. That is, he reads subsection (a)(2)
14 SAINTHA v. MUKASEY
to provide a stand-alone path to achieving LPR status: "Any alien
who is found . . . after a hearing before an immigration judge to be
admissible . . . shall . . . be regarded as lawfully admitted to the
United States for permanent residence," § 1159(a)(2). As nothing in
subsection (a)(2) imposes a limit on the number of times an alien
originally admitted as a refugee may pursue adjustment of status, nor
otherwise harkens back to the three criteria of subsection (a)(1), Sain-
tha claims that he is eligible for such relief. This interpretation is
more logical, he argues, because it renders both refugees convicted of
crimes before adjusting to LPR status and those that commit crimes
after such an adjustment eligible to seek discretionary relief through
a waiver of inadmissibility and adjustment to LPR status.

Though we find the government’s reading of the statute the more
persuasive of the two, we need not resolve the question de novo.
Instead, assuming without deciding that the statute could be read
either way, we find the BIA’s interpretation to be "based on a permis-
sible construction of the statute" and therefore controlling. See Chev-
ron, 467 U.S. at 843.

The BIA read subsection (a)(1) to provide three criteria that must
be met by any alien seeking adjustment of status. Because Saintha
concedes that he "has [already] acquired permanent resident status"
once in the past, the BIA ruled, that he cannot satisfy the third crite-
rion and therefore cannot achieve adjustment of status a second time.
The BIA found that Saintha is likewise ineligible to seek a waiver of
inadmissibility under § 1159(c) because such a waiver is only avail-
able to aliens seeking adjustment of status and would be futile outside
of that context.

The BIA’s interpretation certainly qualifies as a permissible con-
struction of the statute. Section 1159(a)(1) sets out the "criteria and
procedures" for an alien, admitted as a refugee, to adjust his status to
that of a LPR. Among this list of criteria is § 1159(a)(1)(c), which
limits the relief to aliens "who ha[ve] not acquired permanent resident
status." Thus, it is logical to conclude that an alien such as Saintha,
who has previously acquired permanent resident status but was later
rendered removable by the commission of multiple crimes, is ineligi-
ble to acquire LPR status again under § 1159. See Gutnik v. Gonzales,
469 F.3d 683, 690 (7th Cir. 2006) (deferring to the BIA in adopting
 SAINTHA v. MUKASEY 15
a similar interpretation of § 1159). Further, this interpretation is in
accord with the Attorney General’s stated policy of granting "favor-
able adjustments of status to violent or dangerous individuals [only]
in extraordinary circumstances." See In re Jean, 23 I&N Dec. 373,
383 (2002). The BIA was charged with construing § 1159 in its
entirety and applying it to Saintha’s request for relief. In doing so, it
determined that § 1159(a)(1)(c) prohibited him from seeking adjust-
ment of status and, likewise, a waiver of inadmissibility. The possibil-
ity that a subsection of that statute could perhaps lead another
decisionmaker to a different conclusion only reinforces the ambiguity
of the statute. It does not, however, render the BIA’s interpretation
impermissible so as to overcome the substantial deference the BIA is
owed. In light of that deference, we deny Saintha’s petition for review
as to his requests for adjustment of status and a waiver of inadmissi-
bility.

IV.

For the foregoing reasons, the petition for review is

DISMISSED IN PART AND DENIED IN PART.