Case: 15-14363    Date Filed: 04/14/2016   Page: 1 of 5


                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 15-14363
                           Non-Argument Calendar
                         ________________________

                          Agency No. A076-577-376

MYKOLA SHCHUPAK,

                                                                         Petitioner,

                                     versus

U.S. ATTORNEY GENERAL,

                                                                       Respondent.

                         ________________________

                    Petition for Review of a Decision of the
                         Board of Immigration Appeals
                          ________________________

                                (April 14, 2016)

Before MARCUS, WILLIAM PRYOR and JULIE CARNES, Circuit Judges.

PER CURIAM:

      Mykola Shchupak petitions for review of the Immigration Judge’s (“IJ”)

order, which the Board of Immigration Appeals (“BIA”) affirmed without opinion,

denying his claim for a hardship waiver of inadmissibility under Immigration and
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Nationality Act (“INA”) § 212(h), 8 U.S.C. § 1182(h). On appeal, Shchupak, who

was found to be deportable and who is not concurrently applying for adjustment of

status, argues that the immigration judge (“IJ”) violated his equal protection rights

by determining that he is ineligible for waiver under INA § 212(h). After thorough

review, we deny Shchupak’s petition.

      When the BIA affirms the IJ’s decision without opinion, we review the IJ’s

order as the final agency decision. Sepulveda v. U.S. Att’y Gen., 

,

1230 (11th Cir. 2005). Although we lack jurisdiction to review a decision of the

Attorney General to grant or deny a waiver under INA § 212(h), we have

jurisdiction to review the legal question of whether the petitioner is statutorily

eligible to apply for a § 212(h) waiver. Lanier v. U.S. Att’y. Gen., 

,

1365 n.2 (11th Cir. 2011). We review the BIA’s statutory interpretation de novo,

“but will defer to the BIA’s interpretation of a statute if it is reasonable and does

not contradict the clear intent of Congress.” Jaggernauth v. U.S. Att’y Gen., 

, 1350 (11th Cir. 2005). Constitutional challenges are reviewed de novo.

Lapaix v. U.S. Att’y Gen., 

, 1143 (11th Cir. 2010).

      Section 212(h) provides that the Attorney General, in her discretion, may

waive an alien’s inadmissibility from having certain criminal convictions if the

petitioner demonstrates that his “denial of admission would result in extreme

hardship” to a United States citizen family member, and the Attorney General has


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“consented to the alien’s applying or reapplying for a visa, for admission to the

United States, or adjustment of status.”         8 U.S.C. § 1182(h).        “[F]ederal

classifications such as those at issue in § 212 of the [INA] are subject to minimal

scrutiny under the rational basis standard of review, and are valid if not arbitrary or

unreasonable.” Poveda v. U.S. Att’y Gen., 

, 1172 (11th Cir. 2012)

(quotation omitted). Under the rational basis standard, the alien bears the burden

of establishing that the government regulation is arbitrary or unreasonable, and not

rationally related to the government’s purpose. 

held that the BIA’s prior interpretation of § 212(h), which

permitted the waiver for deportable (as opposed to inadmissible) aliens only if the

deportable alien could apply for adjustment of status or had departed and returned

to the United States after their criminal conviction, was unconstitutional as a

violation of equal protection. Yeung v. INS, 

, 338-41 (11th Cir. 1995).

However, “[i]n the wake of Yeung, the Board has ‘abandoned’ its previous

position.” 

. Currently, the BIA:

      interprets section 212(h) to provide that the Attorney General may grant a
      waiver in two situations: 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; and 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.



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alien who remains within the United States must apply for

adjustment of status to obtain a waiver under section 212(h).” 

      In Poveda, we held that the BIA’s current interpretation of INA § 212(h) is

reasonable and thus entitled to Chevron deference. 

see Chevron

U.S.A., Inc. v. Natural Res. Def. Council, Inc., 

, 865 (1984) (holding

that where Congress has not unambiguously spoken in a statute on an issue, the

statutory interpretation by the agency entitled to administer it is entitled deference

so long as the interpretation is reasonable). We noted that the true distinction

between those eligible and ineligible for the § 212(h) waiver “is not ‘lack of

international travel,’” but rather between “those criminal aliens who seek to be

admitted to the United States, and those criminal aliens who are being deported

from the United States.” 

(quotations and emphasis

omitted). We further held that there are multiple rational bases for distinguishing

between aliens who are inadmissible and aliens who are deportable. 

78; see also Rivas v. U.S. Att’y Gen., 

, 1329-30 (11th Cir. 2014)

(dealing with the availability of nunc pro tunc waivers to deportable aliens who left

and reentered the United States).

      Here, the IJ did not err in denying Shchupak’s application for a § 212(h)

waiver. Shchupak is not eligible for relief because he is a deportable alien in the

United States and did not concurrently file an application for adjustment of status.


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See 

-74.       Further, Shchupak’s reliance on Yeung is

unavailing, because this Court has since held that the BIA’s current interpretation

of § 212(h) is reasonable. See 

, 1176-78. Moreover,

Poveda held that the distinction between deportable and inadmissible aliens has a

rational basis, and that holding has not been overruled or undermined to the point

of abrogation. See United States v. Archer, 

, 1352 (11th Cir. 2008)

(Under the prior panel precedent rule, subsequent panels are bound by the holding

of a prior panel “unless and until it is overruled or undermined to the point of

abrogation by the Supreme Court or by this court sitting en banc.”).         Thus,

Shchupak’s argument is foreclosed by our prior precedent.

      AFFIRMED.




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