PRECEDENTIAL

   UNITED STATES COURT OF APPEALS
        FOR THE THIRD CIRCUIT



                 No. 14-3982


                KA A. PAEK,
                                 Petitioner

                       v.

      ATTORNEY GENERAL OF THE
      UNITED STATES OF AMERICA,
                         Respondent



   On Petition for Review of an Order of the
         Board of Immigration Appeals
         (Agency No.: A042-564-755)
Immigration Judge: Honorable Andrew R. Arthur


           Argued on June 1, 2015


         (Opinion filed: July 20, 2015)
Before: RENDELL, HARDIMAN, and VANASKIE, Circuit
                    Judges

Ben Winograd, Esquire (ARGUED)
Immigrant & Refugee Appellate Center, LLC
3602 Forest Drive
Alexandria, VA 22302

Daniel B. Conklin
The Shagin Law Group
Inns of St. Judge
120 South Street
Harrisburg, PA 17101

            Counsel for Petitioner Ka A. Paek


Joyce R. Branda, Esquire
Ernesto H. Molina, Jr., Esquire
Bernard A. Joseph, Esquire (ARGUED)
Office of Immigration Litigation
United States Department of Justice
Civil Division
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044

      Counsel for Respondent United States Attorney
General




                            2
                          OPINION


RENDELL, Circuit Judge:

       We address the proper interpretation of the

Immigration and Nationality Act (“INA”)—specifically,

whether the conditional nature of an alien’s lawful permanent

resident status affects his eligibility for a waiver of

inadmissibility under INA § 212(h), 8 U.S.C. § 1182(h).

Under § 212(h)’s aggravated felony bar, “an alien who has

previously been admitted to the United States as an alien

lawfully admitted for permanent residence,” who is later

convicted of an aggravated felony, is statutorily ineligible for

a waiver of inadmissibility. 

decide whether an

alien admitted as a lawful permanent resident on a conditional

basis (“Conditional LPR”) qualifies as “an alien lawfully

admitted for permanent residence” for purposes of § 212(h).




                                 3
The Board of Immigration Appeals (“BIA”) answered that

question in the affirmative and, therefore, held that Petitioner

Ka A. Paek was statutorily ineligible for a § 212(h) waiver

because he had committed an aggravated felony after his

admission as a Conditional LPR. We agree and will deny the

petition for review.

                 I.       BACKGROUND

       Paek is a native and citizen of South Korea. On June

5, 1991, Paek was admitted to the United States at a port of

entry as a Conditional LPR. The basis for Paek’s admission

was his mother’s marriage to a U.S. citizen and member of

the U.S. military, thereby qualifying Paek as an “alien son.”

See INA § 216(h)(2), 8 U.S.C. § 1186a(h)(2) (“The term

‘alien son or daughter’ means an alien who obtains the status

of an alien lawfully admitted for permanent residence

(whether on a conditional basis or otherwise) by virtue of

being the son or daughter of an individual through a




                               4
qualifying marriage.”). Pursuant to § 216(a)(1), an “alien

son” “shall be considered, at the time of obtaining the status

of an alien lawfully admitted for permanent residence, to have

obtained such status on a conditional basis subject to the

provisions of this section.” INA § 216(a)(1), 8 U.S.C.

§ 1186a(a)(1).

       On July 5, 2000, after an appropriate petition was

filed, Paek’s immigration status was adjusted. See INA

§ 216(c)(1), 8 U.S.C. § 1186a(c)(1) (describing the

requirements “for the conditional basis . . . for an alien spouse

or an alien son or daughter to be removed”). His status was

adjusted to that of a non-conditional lawful permanent

resident (“Non-conditional LPR”).

       In 2005 and 2006, Paek was convicted of receiving

stolen property, theft, and, relevant here, first degree robbery




                                5
in violation of Del. Code Ann. tit. 11, § 832(a)(2). 1 After

removal proceedings were initiated against him, Paek applied

for adjustment of status on the basis of his own marriage to a

U.S. citizen. He also sought a waiver of inadmissibility

pursuant to § 212(h).

       The Immigration Judge (“IJ”) determined that, inter

alia, Paek was statutorily ineligible for a § 212(h) waiver

pursuant to the aggravated felony bar:

       No 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


1
  “A person is guilty of robbery in the first degree when the
person commits the crime of robbery in the second degree
and when, in the course of the commission of the crime or of
immediate flight therefrom, the person or another participant
in the crime: . . . (2) Displays what appears to be a deadly
weapon or represents by word or conduct that the person is in
possession or control of a deadly weapon . . . .” Del. Code
Ann. tit. 11, § 832(a). On appeal, Paek does not dispute that
this offense constitutes an aggravated felony; therefore, we do
not address that issue.




                               6
       the alien has been convicted of an aggravated
       felony . . . .

INA § 212(h), 8 U.S.C. § 1182(h). The IJ determined that

Paek’s conviction for first degree robbery was an aggravated

felony pursuant to INA § 101(a)(43)(F), 8 U.S.C.

§ 1101(a)(43)(F), and that Paek was convicted of this

aggravated felony after the date he was admitted as a

Conditional LPR (i.e., after June 5, 1991). Paek attempted to

circumvent the aggravated felony bar by arguing that the bar

does not apply to persons initially admitted as Conditional

LPRs, but the IJ rejected this argument.

       Paek appealed to the BIA. “The only issue on appeal

[was] whether the aggravated felony bar applies to an alien

who was admitted at a port of entry as a conditional

permanent resident under section 216(a) of the [INA].” (App.

5.) In a published decision, the BIA determined that the bar

did apply. The BIA reached its decision based on the plain




                              7
  language of § 216, but it also relied on a supporting

  regulation, 8 C.F.R. § 216.1, 2 and a decision of this Court,

  Gallimore v. Attorney General, 

(3d Cir. 2010).

  The BIA’s analysis led it to conclude that Paek is subject to

  the aggravated felony bar and is statutorily ineligible for a

  § 212(h) waiver. Paek petitioned for review.

II.       JURISDICTION AND STANDARD OF REVIEW

         We have jurisdiction over Paek’s question of law. See

  INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D); see also

  Guzman v. Att’y Gen., 

, 1082 (3d Cir. 2014)

  (“Our review is limited to constitutional claims and questions

  of law.”). “We review legal questions de novo, with

  2
    “A conditional permanent resident is an alien who has been
  lawfully admitted for permanent residence within the
  meaning of section 101(a)(20) of the Act, except that a
  conditional permanent resident is also subject to the
  conditions and responsibilities set forth in section 216 or
  216A of the Act, whichever is applicable, and part 216 of this
  chapter. . . . All references within this chapter to lawful
  permanent residents apply equally to conditional permanent
  residents, unless otherwise specified.” 8 C.F.R. § 216.1.




                                  8
appropriate deference for the BIA’s reasonable interpretations

of statutes it is charged with administering.” De Leon-Ochoa

v. Att’y Gen., 

, 348 (3d Cir. 2010). “Under the

familiar two-step Chevron inquiry, first, if the statute is clear

we must give effect to Congress’ unambiguous intent, and,

second, if the statute is silent or ambiguous with respect to a

specific issue, we defer to an implementing agency’s

reasonable interpretation of that statute.” 

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

,

842-43 (1984)).

                  III.      DISCUSSION

       Paek urges that, because he was initially admitted as a

Conditional LPR, he has not “previously been admitted to the

United States as an alien lawfully admitted for permanent

residence.” See INA § 212(h), 8 U.S.C. § 1182(h). He

reasons that the conditional nature of his lawful permanent

resident status meant that he was not “permanent” when




                                9
admitted, as required by the statutory definition of “lawfully

admitted for permanent residence.” See INA § 101(a)(20), 8

U.S.C. § 1101(a)(20) (“The term ‘lawfully admitted for

permanent residence’ means 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.”).

Alternatively, he urges that, if we find the relevant INA

sections ambiguous, we should remand to the BIA for further

consideration.

       However, we conclude that the plain language of the

INA indicates that an alien admitted as a Conditional LPR

constitutes “an alien who has previously been admitted to the

United States as an alien lawfully admitted for permanent

residence,” INA § 212(h), 8 U.S.C. § 1182(h), and, therefore,

that the BIA correctly determined that the aggravated felony

bar renders Paek statutorily ineligible for a § 212(h) waiver.




                              10
        “As with any question of statutory interpretation, our

analysis begins with the plain language of the statute.”

Jimenez v. Quarterman, 

, 118 (2009). “[I]n

looking for the meaning of this statutory language, we must

look to the statutory context in which that language is used

and the broader context of the statute as a whole as well as the

language itself.” N.J. Payphone Ass’n v. Town of W. N.Y.,

, 245 (3d Cir. 2002). “It is true that, in the face

of statutory ambiguity or uncertainty, we may ‘have recourse

to the legislative history of the measure and the statements by

those in charge of it during its consideration by the

Congress,’” Estate of Arrington v. Michael, 

,

605 (3d Cir. 2013) (quoting United States v. Great N. Ry.,

, 154-55 (1932)); however, “we do not resort to

legislative history to cloud a statutory text that is clear.”

Ratzlaf v. United States, 

, 147-48 (1994). Here,

the statutory text is clear, not ambiguous.




                                11
       The aggravated felony bar provides that a § 212(h)

waiver is not available to “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 . . . .”

INA § 212(h), 8 U.S.C. § 1182(h) (emphasis added). We

have already addressed the proper date on which a

Conditional LPR, who had the conditional basis of his status

removed (i.e., who became a Non-conditional LPR), was

admitted to the United States as an alien lawfully admitted for

permanent residence. 

.3 In

Gallimore, the Attorney General argued that the alien, Earl

Gallimore, was not “lawfully admitted for permanent

residence” until the date on which the conditional basis of his


3
  Gallimore did not turn on the aggravated felony bar; instead,
the issue was the alien’s eligibility for a discretionary waiver
of removal under INA § 212(c), 8 U.S.C. § 1182(c), which
has since been 

.




                               12
immigration status was removed, as opposed to the date on

which he became a Conditional LPR. 

We

remanded because “the BIA simply overlooked the fact” that

the date on which Gallimore had become a Conditional LPR

may have been the relevant date. 

strong and

persuasive dicta, we noted that the provisions in § 216

“unambiguously accord conditional LPRs the privilege of

residing ‘permanently’ in the United States, notwithstanding

the literal meaning of the word ‘permanently’ and the

conditional nature of the status.” 

Furthermore, we

proclaimed that “[t]he INA thus equates conditional LPRs

with ‘full-fledged’ LPRs, except to the extent—but only to

the extent—that [§ 216] prescribes additional obligations.”

While we did opine on this issue, the parties

before us agree—as do we—that this was dicta and not

controlling on remand in that case. 4

4
    Paek emphasizes another case, Hanif v. Attorney General,




                               13
       Here, the relevant phrase in the aggravated felony bar

is defined by statute: “The term ‘lawfully admitted for

permanent residence’ means 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.” INA

§ 101(a)(20), 8 U.S.C. § 1101(a)(20). Of course, “[w]hen a

statute includes an explicit definition, we must follow that

definition, even if it varies from that term’s ordinary

meaning.” Stenberg v. Carhart, 

, 942 (2000).

The thrust of Paek’s argument is that this definition is not

consistent with Conditional LPR status because, by its very

(3d Cir. 2012), but that case is not relevant to
our holding here. In Hanif, we determined that, according to
the aggravated felony bar’s “plain meaning,” the bar did not
apply to an alien who “originally entered the country
illegally,” as an illegal alien has not been “admitted” as “an
alien lawfully admitted for permanent residence.” 

                               14
nature, Conditional LPR status is not “permanent” and indeed

changes.

       However, as we did in Gallimore, we must look to the

INA as a whole; in particular, we must consider § 216 and

§ 216A of the INA, which explain the concept of Conditional

LPR status. See Prestol Espinal v. Att’y Gen., 

,

217 (3d Cir. 2011) (“The Supreme Court has instructed that

‘we must not be guided by a single sentence or member of a

sentence, but look to the provisions of the whole law, and to

its object and policy.’” (quoting United States v. Heirs of

Boisdore, 

, 122 (1850))). When we consider

§ 216 and § 216A, we can only conclude that Paek was

“lawfully admitted for permanent residence,” notwithstanding

the conditional nature of his LPR status.

       Perhaps most tellingly, § 216 states that “an alien son

or daughter . . . shall be considered, at the time of obtaining

the status of an alien lawfully admitted for permanent




                               15
residence, to have obtained such status on a conditional basis

subject to the provisions of this section.” INA § 216(a)(1), 8

U.S.C. § 1186a(a)(1) (emphasis added); see also INA § 216A,

8 U.S.C. § 1186b(a)(1) (“[A]n alien entrepreneur . . . , alien

spouse, and alien child . . . shall be considered, at the time of

obtaining the status of an alien lawfully admitted for

permanent residence, to have obtained such status on a

conditional basis . . . .”). Clearly, Congress contemplated that

a Conditional LPR “obtain[s] the status of an alien lawfully

admitted for permanent residence,” with the only caveat being

that said status is obtained “on a conditional basis.” INA

§ 216(a)(1), 8 U.S.C. § 1186a(a)(1).

       Lest there be any doubt, § 216 and § 216A refer to “the

second anniversary of the alien’s obtaining the status of

lawful admission for permanent residence” as being

synonymous with the second anniversary of the alien’s

admission as a Conditional LPR. See, e.g., INA § 216(b)(1),




                                16
(c)(2)(A), (c)(3)(B), (d)(2)(A), 8 U.S.C. § 1186a(b)(1),

(c)(2)(A), (c)(3)(B), (d)(2)(A); INA § 216A(b)(1), (c)(2)(A),

(c)(3)(B), (d)(2)(A), 8 U.S.C. § 1186b(b)(1), (c)(2)(A),

(c)(3)(B), (d)(2)(A). For instance, § 216 provides:

       In the case of an alien with permanent resident
       status on a conditional basis under subsection
       (a), if—
           (i) no petition is filed with respect to the
           alien in accordance with the provisions of
           paragraph (1)(A), or
           (ii) unless there is good cause shown, the
           alien spouse and petitioning spouse fail to
           appear at the interview described in
           paragraph (1)(B),
       the Secretary of Homeland Security shall
       terminate the permanent resident status of the
       alien as of the second anniversary of the alien’s
       lawful admission for permanent residence.

INA § 216(c)(2)(A), 8 U.S.C. § 1186a(c)(2)(A) (emphases

added). This provision is clearly applicable only “in the case

of an alien with permanent resident status on a conditional

basis,” and it provides that the Secretary of Homeland

Security “shall terminate the permanent resident status of the




                              17
alien as of the second anniversary of the alien’s lawful

admission for permanent residence.” 

that, if

no petition to adjust status is filed within two years of an alien

becoming a Conditional LPR, then the Secretary of Homeland

Security shall terminate the alien’s “permanent resident

status” at the conclusion of those two years. 

Conditional LPR must have had the status of a “permanent

resident” for two years in order for such status to be

terminated; otherwise, this provision makes no sense.

       Indeed, the language of § 216 and § 216A repeatedly

discusses Conditional LPRs having their status of lawful

admission for permanent residence “terminated.” See, e.g.,

INA § 216(b)(1), 8 U.S.C. § 1186a(b)(1); INA § 216A(b)(1),

8 U.S.C. § 1186b(b)(1). If a Conditional LPR did not have

“the status of lawful admission for permanent residence,”

then the statutes would not speak of Conditional LPRs having

such status “terminated.” See, e.g., INA § 216(b)(2), 8 U.S.C.




                               18
§ 1186a(b)(2) (“Any alien whose permanent resident status is

terminated under paragraph (1) may request a review of such

determination in a proceeding to remove the alien.”); INA

§ 216(c)(2)(A), 8 U.S.C. § 1186a(c)(2)(A) (“[T]he Secretary

of Homeland Security shall terminate the permanent resident

status of the alien as of the second anniversary of the alien’s

lawful admission for permanent residence.”); INA

§ 216(c)(2)(B), 8 U.S.C. § 1186a(c)(2)(B) (“In any removal

proceeding with respect to an alien whose permanent resident

status is terminated . . . .”); INA § 216(c)(3)(C), 8 U.S.C.

§ 1186a(c)(3)(C) (“[T]he Secretary of Homeland Security . . .

shall terminate the permanent resident status of an alien

spouse or an alien son or daughter . . . .”); INA

§ 216(c)(3)(D), 8 U.S.C. § 1186a(c)(3)(D) (“Any alien whose

permanent resident status is terminated . . . .”); INA

§ 216A(c)(2)(A), 8 U.S.C. § 1186b(c)(2)(A) (“[T]he Attorney




                               19
General shall terminate the permanent resident status of the

alien . . . .”).

        Similarly, § 216 and § 216A provide that a Conditional

LPR becomes a Non-conditional LPR by having “the

conditional basis of such status removed.” INA

§ 216(a)(2)(A), 8 U.S.C. § 1186a(a)(2)(A); accord INA

§ 216A(a)(2)(A), 8 U.S.C. § 1186b(a)(2)(A); see also INA

§ 216(c)(1), 8 U.S.C. § 1186a(c)(1) (“In order for the

conditional basis . . . to be removed . . . .”); INA

§ 216(c)(1)(A), 8 U.S.C. § 1186a(c)(1)(A) (“[T]he alien

spouse and the petitioning spouse . . . must submit . . . a

petition which requests the removal of such conditional basis

. . . .”); INA § 216(c)(3)(B), 8 U.S.C. § 1186a(c)(3)(B)

(“[T]he Secretary of Homeland Security . . . shall remove the

conditional basis of the parties effective as of the second

anniversary of the alien’s obtaining the status of lawful

admission for permanent residence.”); INA § 216(c)(4), 8




                                20
U.S.C. § 1186a(c)(4) (“The Secretary of Homeland Security

. . . may remove the conditional basis of the permanent

resident status for an alien . . . .”). That Congress spoke of

the removal of “the conditional basis of such status”

demonstrates that a Conditional LPR had already obtained the

status of “lawful admission for permanent residence.”

       Nonetheless, Paek urges that our interpretation of “the

status of an alien lawfully admitted for permanent residence”

is undermined by the fact that § 216(e) singles out

Conditional LPRs and that this provision would be surplusage

if all Conditional LPRs are necessarily lawfully admitted for

permanent residence. Section 216(e) states:

       For purposes of subchapter III of this chapter, in
       the case of an alien who is in the United States
       as a lawful permanent resident on a conditional
       basis under this section, the alien shall be
       considered to have been admitted as an alien
       lawfully admitted for permanent residence and
       to be in the United States as an alien lawfully
       admitted to the United States for permanent
       residence.




                               21
INA § 216(e), 8 U.S.C. § 1186a(e). Subchapter III relates to

naturalization, and it does not include § 212(h), which is in

subchapter II. Paek argues that, if a Conditional LPR is “an

alien lawfully admitted for permanent residence,” Congress

would not need to state that Conditional LPRs are

“considered” to be lawfully admitted for permanent

residence, nor would it have limited § 216(e) to apply only to

“subchapter III.”

       The canon against surplusage counsels us to “give[]

effect to every word” of a statute and to avoid rendering a

statute “superfluous,” whether in whole or in part. Marx v.

Gen. Revenue Corp., 

, 1177 (2013). But we

read § 216(e) not as limiting the situation in which

Conditional LPRs are the same as Non-conditional LPRs, but

rather as clarifying that, for purposes of naturalization, it does

not matter whether an alien is a Conditional LPR or a Non-




                               22
conditional LPR: either way, the naturalization provisions

apply. We believe that Congress desired to clarify that, for

naturalization purposes, a Conditional LPR does not need to

wait for the removal of the conditional basis of his status

before seeking naturalization, and does indeed have the status

of “an alien lawfully admitted for permanent residence.” In

light of all the other passages in § 216 and § 216A cited

above, we do not believe that this instance of purported

surplusage creates any ambiguity as to Congress’s intent for

the aggravated felony bar. 5


5
  We also reject Paek’s invocation of the rule of lenity. See
Salinas v. United States, 

, 66 (1997) (“The rule
[of lenity] does not apply when a statute is unambiguous or
when invoked to engraft an illogical requirement to its text.”).
Likewise to no avail is Paek’s reliance on the canon that,
where “Congress includes particular language in one section
of a statute but omits it in another section of the same Act, it
is generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.” Russello v.
United States, 

, 23 (1983) (quoting United States
v. Wong Kim Bo, 

, 722 (5th Cir. 1972)). The
fact that Congress did not repeat the cumbersome phrase




                               23
       Paek urges that certain legislative history, which refers

to Conditional LPR as being a “status” or as otherwise being

different from Non-conditional LPR, indicates that our

conclusion is incorrect. See, e.g., H.R. Rep. No. 99-906, at 7

(1986), reprinted in 1986 U.S.C.C.A.N. 5978, 5979 (“Creates

a two-year ‘conditional’ status for all alien spouses, sons, and

daughters who become permanent resident aliens . . . .”); 

reprinted in 1986 U.S.C.C.A.N. at 5981 (“By postponing

the privilege of permanent resident status until two years after

the alien’s obtaining the status of lawful admission for

permanent residence, the bill provides a balanced

approach.”). But, given the clarity and lack of ambiguity in

the statutory text, Paek’s cited legislative history is

unavailing. See 

. Regardless,


“whether on a conditional basis or otherwise” as a modifier
for “lawfully admitted for permanent residence” in every
instance, as it did in § 216(h)(1) and (h)(2), does not create an
ambiguity in the statute.




                                24
Paek can point to nothing in the legislative history that

indicates that Congress intended the aggravated felony bar to

be inapplicable to Conditional LPRs. Whether the legislative

history refers to Conditional LPR as a separate status or

otherwise contrasts Conditional LPR from Non-conditional

LPR status is of no moment. Simply put, for purposes of the

aggravated felony bar, a Conditional LPR is to be treated the

same as a Non-conditional LPR.

       Given that we find no ambiguity in the statute, we

decide this case at step one of the Chevron analysis. We do

not address the issues the parties have raised in connection

with Chevron’s step two, which involve the amount of

deference we should afford to the BIA’s published decision in

this case. However, we remind the BIA that “agencies should

not move away from their previous rulings without cogent

explanation.” Cruz v. Att’y Gen., 

, 250 (3d Cir.

2006). In two prior unpublished BIA decisions, the BIA held




                               25
that the aggravated felony bar does not apply to an alien

admitted as a Conditional LPR. See, e.g., In re Mata-Rosas,

No. A076-404-712, at 3 (BIA Apr. 20, 2011) (concluding

that, because “the respondent was lawfully admitted as a

conditional lawful permanent resident,” the aggravated felony

bar is inapplicable); In re Peretz, No. A29-832-294, at 4 (BIA

May 25, 1999) (“Furthermore, assuming that the respondent

remained a conditional resident, we do not agree that this

constitutes the functional equivalent of legal permanent

residency for purposes of applying for section 212(h)

relief.”). The BIA’s published decision in Paek’s case

contradicted these two prior rulings, without acknowledging

the contradiction. Perhaps our decision in Gallimore is the

reason for the BIA’s change in position, as the BIA cited

Gallimore in its decision. If so, it is understandable why the

BIA mistakenly believed that Gallimore compelled the result.




                              26
       Regardless, issues concerning the amount of deference

owed to the BIA’s decision are irrelevant to our determination

of whether the statutory text is plain and unambiguous. We

need not decide what level or type of deference we would

give to the BIA’s decision in Paek’s case because we

conclude that our inquiry ends at step one of the Chevron

analysis: the statutory language of the INA unambiguously

provides that an alien admitted as a Conditional LPR is

subject to the aggravated felony bar.

                IV.       CONCLUSION

       Accordingly, we will deny the petition for review.




                              27