Filed: Oct. 21, 2013
Latest Update: Mar. 28, 2017
Summary: Case: 12-60364 Document: 00512414647 Page: 1 Date Filed: 10/21/2013 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED October 21, 2013 No. 12-60364 Lyle W. Cayce Clerk OANH NGUYEN, Petitioner v. ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL, Respondent Petitions for Review of an Order of the Board of Immigration Appeals BIA No. A027 350 312 Before HIGGINBOTHAM, OWEN, and HIGGINSON, Circuit Judges. PER CURIAM:* Oanh Nguyen filed two petit
Summary: Case: 12-60364 Document: 00512414647 Page: 1 Date Filed: 10/21/2013 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED October 21, 2013 No. 12-60364 Lyle W. Cayce Clerk OANH NGUYEN, Petitioner v. ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL, Respondent Petitions for Review of an Order of the Board of Immigration Appeals BIA No. A027 350 312 Before HIGGINBOTHAM, OWEN, and HIGGINSON, Circuit Judges. PER CURIAM:* Oanh Nguyen filed two petiti..
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Case: 12-60364 Document: 00512414647 Page: 1 Date Filed: 10/21/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 21, 2013
No. 12-60364
Lyle W. Cayce
Clerk
OANH NGUYEN,
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petitions for Review of an Order of the
Board of Immigration Appeals
BIA No. A027 350 312
Before HIGGINBOTHAM, OWEN, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Oanh Nguyen filed two petitions for review from orders of the Board of
Immigration Appeals (“BIA”) that have been combined into the present appeal.
Because we find that we have no jurisdiction to hear her challenge to the BIA’s
determination that she is not eligible for an Immigration and Nationality Act
(“INA”) § 212(h) waiver and because we agree with the BIA’s determination that
a § 209(c) waiver does not apply to refugees who have already adjusted to lawful
permanent resident (“LPR”) status, we DISMISS in part and DENY in part.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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I.
Oanh Nguyen, a native and citizen of Vietnam, was paroled into the
United States as a refugee on November 27, 1984. Her status was adjusted to
that of a LPR on April 3, 1986, with an effective date of November 27, 1984.
Nguyen was convicted of theft a total of eight times in Harris County, Texas,
between 1986 and 2004.
In June 2007, she applied for admission into the United States as a
returning resident but was paroled due to her extensive criminal history.
Nguyen was thereafter charged with removability pursuant to INA
§ 212(a)(2)(A)(i)(I),1 in that she was an alien who had been convicted of a crime
involving moral turpitude.
Nguyen appeared before an immigration judge (“IJ”) and conceded
removability. Nguyen sought an INA § 212(h)2 waiver of admissibility, and
offered evidence in support of her application. The IJ thereafter issued a decision
denying Nguyen’s application for a § 212(h) waiver of inadmissibility,
determining that she had not demonstrated that her United States citizen
children would experience extreme hardship if she were removed and that relief
should not be granted as a matter of discretion. The IJ found that even if it was
assumed that Nguyen had recovered from her alleged kleptomania, her past
transgressions were sufficiently significant and numerous that she did not
warrant the relief sought. The IJ added with respect to the extreme hardship
analysis that Nguyen’s daughters (aged 19 and 22 and in college) were not
precluded from all contact with Nguyen, that Nguyen could talk with them by
phone, and that future visits to Vietnam for the girls were feasible given
Nguyen’s financial position.
1
8 U.S.C. § 1182(a)(2)(A)(i)(I).
2
8 U.S.C. § 1182(h).
2
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The BIA dismissed Nguyen’s appeal, agreeing with the IJ that Nguyen had
not shown that her removal would result in extreme hardship to her United
States citizen children and that, as a matter of discretion, she did not merit a
waiver on account of her lengthy criminal history. Nguyen then filed her first
petition for review, which was timely filed.3
Nguyen argued that this Court had jurisdiction to review her eligibility for
a § 212(h) waiver of inadmissibility. Next, she argued that (1) the BIA and IJ
failed to consider her refugee status; (2) the BIA and IJ failed to consider that
she was eligible for a § 209(c)4 waiver; and (3) even if it is assumed arguendo
that she is ineligible for a § 209(c) waiver, the BIA and IJ failed to consider her
immigration history as a refugee in the extreme hardship and discretionary
analysis for purposes of a § 212(h) waiver.
The Government countered that this Court lacked jurisdiction to review
the petition because her challenge of the denial of discretionary relief with
regard to the § 212(h) waiver did not raise a constitutional or legal issue and,
additionally, Nguyen had failed to exhaust the issues related to her refugee
status and eligibility for a § 209(c) waiver.
While her first petition was pending, Nguyen moved the BIA for
reconsideration of her appeal and raised the issues of her refugee status and her
eligibility for a § 209(c) waiver. On reconsideration, the BIA acknowledged that
it did not address issues related to Nguyen’s refugee status and her eligibility for
a § 209(c) waiver, but determined that such error was harmless. As to Nguyen’s
challenge to the § 212(h) determination, the BIA acknowledged that Nguyen
entered the United States as a refugee, but nevertheless reaffirmed its holding,
stating that she had not shown that her removal would result in extreme
3
8 U.S.C. § 1252(b)(1) (“The petition for review must be filed not later than 30 days
after the date of the final order of removal.”).
4
8 U.S.C. § 1159(c).
3
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hardship to her United States citizen children. The BIA found noteworthy
evidence that Nguyen had voluntarily returned several times to Vietnam since
coming to the United States as a refugee and had not expressed a fear of
returning. Therefore, even taking her refugee status into consideration, the BIA
held that she did not merit a § 212(h) waiver as a matter of discretion in light of
her lengthy criminal history. As to Nguyen’s challenge based on her claim of
eligibility to a § 209(c) waiver, the BIA determined that a § 209(c) waiver is
available only to an alien seeking adjustment of status under § 209, which is
available only to refugees who have not acquired LPR status. Noting that it was
undisputed that Nguyen adjusted her status to that of a LPR in 1986, the BIA
concluded that she was ineligible for adjustment of status under § 209, and as
a result, was ineligible for a § 209(c) waiver of inadmissibility. The BIA thus
determined that the IJ did not violate his duty to inform her of all potential
forms of relief. It therefore denied her motion for reconsideration. Nguyen filed
a second timely petition for review.
Both these petitions have now been consolidated into the present appeal.
II.
A.
Under § 212(h), the Attorney General, in his discretion, may waive the
inadmissibility of an alien convicted of a crime involving moral turpitude,5 if the
immigrant is the parent of a United States citizen and it is established to the
satisfaction of the Attorney General that the immigrant’s denial of admission
would result in extreme hardship to the United States citizen child and,
additionally, the Attorney General, in his discretion, has consented to the
immigrant’s applying or reapplying for adjustment of status.6
5
8 U.S.C. § 1182(a)(2)(A)(i)(I).
6
8 U.S.C. § 1182(h); see also Cabral v. Holder, 632 F.3d 886, 890–91 (5th Cir. 2011).
4
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Courts generally do not have jurisdiction to review any judgment
regarding the granting of relief under § 212(h).7 Additionally, courts generally
do not have jurisdiction to review any final order of removal against an alien
who is removable by reason of having committed a crime involving moral
turpitude.8 However, the REAL ID Act provides an exception to both these
jurisdictional bars.9 Under INA § 242(a)(2)(D), courts retain jurisdiction over
review of constitutional claims or questions of law raised in a petition for
review.10 Thus, as long as such constitutional claims and questions of law are
properly exhausted before the BIA, we have jurisdiction.11 Abuse of discretion
claims, however, are outside the scope of review due to the jurisdictional bars.12
Finally, questions regarding this Court’s jurisdiction are reviewed de novo.13
B.
Nguyen’s original argument in favor of this Court’s jurisdiction concerned
the BIA’s and IJ’s failure to address her refugee status in determining her
eligibility for a § 212(h) waiver and failure to address the § 209(c) waiver, which
she characterized as legal errors reviewable by this Court. The BIA has since
considered both arguments. We deal with the § 209(c) waiver analysis below. As
to the § 212(h) waiver analysis, the BIA determined that despite Nguyen’s
refugee status, she had not satisfied the extreme hardship criterion and,
7
8 U.S.C. § 1252(a)(2)(B).
8
8 U.S.C. § 1252(a)(2)(C).
9
Pub. L. No. 109-13, § 106(a)(1)(A)(iii), 119 Stat. 231, 310 (codified at 8 U.S.C. §
1252(a)(2)(D)).
10
8 U.S.C. § 1252(a)(2)(D).
11
Said v. Gonzales, 488 F.3d 668, 670 (5th Cir. 2007) (citing to the exhaustion
requirement found in 8 U.S.C. § 1252(d)(1)).
12
Ogunfuye v. Holder, 610 F.3d 303, 307 (5th Cir. 2010); Marquez-Marquez v. Gonzales,
455 F.3d 548, 560–61 (5th Cir. 2006).
13
Hadwani v. Gonzales, 445 F.3d 798, 800 (5th Cir. 2006).
5
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additionally, she was not entitled to a § 212(h) waiver as a matter of discretion
given her lengthy criminal history.
Nguyen now argues that the BIA’s failure to consider her refugee status
was not harmless error because an applicant’s immigration history is a relevant
factor to be considered for purposes of evaluating extreme hardship. To the
extent the BIA relied on evidence that she had voluntarily returned to Vietnam
several times without incident in its hardship analysis, Nguyen contends that
upon remand to the IJ, new facts can be provided that could reasonably change
the IJ’s views concerning her ability to see and communicate with her United
States citizen children if she were removed. This argument, however, is not
premised on a constitutional claim, an issue of law, or one of statutory
interpretation. Instead, Nguyen seeks review of the BIA’s determination that her
refugee status did not affect the extreme hardship analysis. Nguyen’s argument
that the BIA did not give sufficient weight to her refugee status or immigration
history when determining extreme hardship is not a legal issue reviewable by
this Court.14
Nguyen additionally argues, without citation to authority, that the IJ on
remand and with new facts before it, should have been allowed to make the
initial discretionary determination regarding the evidence of her refugee status
and its effect on her ability to demonstrate extreme hardship. The issue of her
refugee status and its effect on the hardship analysis was raised for the first
time in her motion for reconsideration before the BIA. Motions for
14
Hadwani, 445 F.3d at 801 (rejecting petitioner’s constitutional claims because they
were really abuse of discretion arguments “cloaked in constitutional garb” (internal quotation
marks omitted)).
One of our previous cases has gone even a step further to hold that the petitioner’s
argument that the IJ did not consider all of the relevant factors did not constitute a
constitutional or legal challenge. Sung v. Keisler, 505 F.3d 372, 377 (5th Cir. 2007) (deeming
unreviewable a claim that in denying cancellation of removal, the IJ did not consider all the
relevant factors in determining whether the alien’s children would suffer the requisite
hardship). While we do not rely on it to reach our conclusion today—because the BIA did
consider this factor—we do note that it tends to support our conclusion.
6
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reconsideration are not vehicles for the presentation of new evidence.15 Nguyen’s
refugee status was not new evidence, as it had been contained in the record but
overlooked. Although she attempts to cloak this argument as an issue of law, she
is in essence contending that the BIA’s extreme hardship determination was an
abuse of discretion and could be established as such via the admission of
additional evidence on remand to the IJ. Because motions for reconsideration are
not vehicles for the presentation of new evidence, Nguyen is trying to back-door
the admission of new evidence before an IJ in an effort to show that the BIA
abused its discretion in determining extreme hardship. Such an argument does
not raise a legal issue and, as such, it is unreviewable.16 In light of the preceding,
this Court lacks jurisdiction to review the denial of a § 212(h) waiver of
inadmissibility in this case. We, therefore, DISMISS Nguyen’s petition as to her
§ 212(h) claim.
III.
A.
The question of whether a refugee who has already adjusted to LPR status
can readjust to LPR status using the § 209(c) waiver is a matter of first
impression in this Court. We begin by noting our jurisdiction. Nguyen’s § 209(c)
challenge does not fall under the general jurisdictional bar that prohibits review
of removal orders against aliens who are removable by reason of having
committed a crime involving moral turpitude.17 As Nguyen’s eligibility for a
§ 209(c) waiver is a question of statutory interpretation—in other words, a
15
8 C.F.R. § 1003.2(b)(1) (stating that a motion to reconsider shall specify the errors
of fact or law in the prior BIA decision); Zhao v. Gonzales, 404 F.3d 295, 301 (5th Cir. 2005)
(“A motion for reconsideration urges an adjudicative body to re-evaluate the record evidence
only.”). We cannot interpret Nguyen’s motion as a motion to reopen because she did not state
the new facts she hoped to prove and support these facts by affidavits or other evidentiary
materials. 8 C.F.R. § 1003.2(c)(1).
16
See Hadwani, 445 F.3d at 801; Sung, 505 F.3d at 377.
17
8 U.S.C. § 1252(a)(2)(C).
7
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question of law—this Court has jurisdiction to entertain the argument.18 Finally,
the Government concedes that by virtue of her motion for reconsideration,
Nguyen has now exhausted the issues related to her refugee status and her
eligibility for a § 209(c) waiver. Thus, the statutory interpretation of § 209(c) is
properly before us.
B.
The denial of a motion for reconsideration is reviewed for an abuse of
discretion.19 However, questions of law are afforded de novo review, giving
deference to the BIA’s interpretation of immigration statutes.20
This Court recently addressed the degree of deference afforded the BIA’s
statutory interpretations. In Dhuka v. Holder,21 we held that a non-precedential
opinion of the BIA does not bind third parties and is not entitled to Chevron
deference.22 We reached this conclusion based on Mead,23 reasoning that the
inquiry of “whether Chevron deference applies has a predicate requirement that
the agency have issued its interpretation in a manner that gives it the force of
law.”24 Examining the regulation that allows a BIA opinion to be selected as
precedent, we noted that while the regulation does not allow single-member
decisions to have precedential effect, the regulation does allow three-member
18
8 U.S.C. § 1252(a)(2)(D); see also Said, 488 F.3d at 670.
19
Zhao, 404 F.3d at 301.
20
Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir. 2006).
21
716 F.3d 149 (5th Cir. 2013).
22
Id. at 156; see also Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S.
837 (1984). Under Chevron deference, whether deference is due begins by an inquiry of
whether there is an ambiguity in the statute; if there is one, then the agency’s explanation
must be a reasonable one. Id. at 842–43. This Court usually “accord[s] deference to the BIA’s
interpretation of immigration statutes unless the record reveals compelling evidence that the
BIA’s interpretation is incorrect.” Mikhael v. INS,
115 F.3d 299, 302 (5th Cir. 1997).
23
United States v. Mead Corp., 533 U.S. 218 (2001).
24
Dhuka, 716 F.3d at 155.
8
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panel decisions to have precedential effect if the proper procedural mechanism
is followed.25 We noted that many of our sister courts have held that single-
member decisions are not entitled to Chevron deference due to their non-
precedential nature.26 Turning to the three-member panel decision in that case,
which had not been designated to serve as precedent, we held that the key
inquiry in deciding whether it had the force of law was “whether the BIA
decision made law that binds third parties.”27 We held that “three-member
decisions not designated as precedent have no more force under [the] regulation
than single-member decisions.”28 Thus, we concluded that such decisions because
of their non-precedential nature do not have the necessary force of law and thus
cannot be entitled to Chevron deference.29 However, we also held that
“[c]ontrolling prior BIA decisions that the BIA cite[s] will be given Chevron
deference as appropriate.”30 Later in the opinion, we held that the BIA was
entitled to Chevron deference for those parts of its analysis that cited prior
precedential BIA decisions.31
In this case, the BIA’s interpretation of Nguyen’s eligibility for a § 209(c)
waiver is a single-member decision and thus non-precedential. Therefore, the
decision should be reviewed under Skidmore deference.32 Nevertheless, prior
25
Id. (citing 8 C.F.R. § 1003.1(g)).
26
Id. at 155–56.
27
Id. at 156.
28
Id.
29
Id.
30
Id.
31
Id. at 157 (“The BIA’s precedential decisions on which its current analysis relies are
entitled to Chevron deference . . . .”).
32
Cf. id. at 154; see also Skidmore v. Swift & Co., 323 U.S. 134 (1944). Under Skidmore
deference, the “weight of . . . a judgment in a particular case will depend upon the
thoroughness evident in its consideration, the validity of its reasoning, its consistency with
9
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precedential BIA decisions cited by this single-member decision will be afforded
Chevron deference as appropriate.33
The issue of whether a refugee who has adjusted to LPR status is eligible
for a § 209(c) waiver was raised in In re S-I-K-,34 which was relied upon by the
BIA in denying Nguyen’s motion for reconsideration. In re S-I-K- is a published
three-member decision and has precedential value.35 Thus, under the reasoning
of Dhuka, In re S-I-K- has the necessary force of law to be entitled to Chevron
deference if appropriate.
C.
INA § 209 deals with the adjustment of status of refugees. It provides in
pertinent part:
(a) Inspection and examination by Department of
Homeland Security
(1) Any alien who has been admitted to the
United States under section 1157 of this title—
(A) whose admission has not been
terminated by the Secretary of Homeland
Security or the Attorney General pursuant to
such regulations as the Secretary of Homeland
Security or the Attorney General may prescribe,
(B) who has been physically present in the
United States for at least one year, and
(C) who has not acquired permanent
resident status,
earlier and later pronouncements, and all those factors which give it power to persuade, if
lacking power to control.” Id. at 140.
33
Dhuka, 716 F.3d at 156.
34
24 I. & N. Dec. 324 (BIA 2007).
35
See 8 C.F.R. § 1003.1(g) (“By majority vote of the permanent Board members, selected
decisions of the Board rendered by a three-member panel or by the Board en banc may be
designated to serve as precedents in all proceedings involving the same issue or issues.”); BIA
Practice Manual ch. 1.4(d)(i) (“Published decisions are binding on the parties to the decision.
Published decisions also constitute precedent that binds the Board, the Immigration Courts,
and DHS.”).
10
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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 in accordance
with the provisions of sections 1225, 1229a, and 1231 of
this title.
(2) Any alien who is found upon inspection and
examination 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) of this section) as an immigrant
under this chapter at the time of the alien’s inspection
and examination shall, notwithstanding any numerical
limitation specified in this chapter, 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.
(b) . . . .
(c) Coordination with section 1182
The provisions of paragraphs (4), (5), and (7)(A) of
section 1182(a) of this title shall not be applicable to
any alien seeking adjustment of status under this
section, and the Secretary of Homeland Security or the
Attorney General may waive any other provision of
such section (other than paragraph (2)(C) or
subparagraph (A), (B), (C), or (E) of paragraph (3)) with
respect to such an alien for humanitarian purposes, to
assure family unity, or when it is otherwise in the
public interest.36
Looking to § 209(a)(1)(C), the BIA reasoned that only those aliens who have not
yet acquired LPR status are eligible to seek adjustment under this section. As
a result, the BIA held that Nguyen was not eligible for a § 209(c) waiver because
she could not seek adjustment of status under § 209.
Nguyen argues that the BIA incorrectly interpreted statutory law when
it concluded that she was ineligible for a § 209(c) waiver of inadmissibility
because she had already adjusted from refugee status to LPR status. She
36
8 U.S.C. § 1159.
11
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contends that she did not lose her refugee status, nor was it terminated, merely
because she previously adjusted to LPR status. As a basis of this
argument—that she has not lost her refugee status by virtue of adjusting to LPR
status—Nguyen points us to In re Smriko,37 which held that an alien who has
been admitted as a refugee and has adjusted to LPR status may be placed in
removal proceedings because termination of refugee status is not a precondition
to the initiation of removal proceedings.38 Thus, because her refugee status was
never terminated, Nguyen argues that she is entitled to readjust her LPR status
and apply for a § 209(c) waiver of inadmissibility. She argues that the authority
for allowing readjustment for someone in her position is supported by
precedential BIA and Attorney General decisions.39
The BIA has previously dealt with this same question. In In re S-I-K-, an
alien who had been admitted as a refugee and who had adjusted to LPR status
urged, following a conviction for an aggravated felony, that he was entitled to
seek adjustment of status under § 209(a) in conjunction with a waiver of
inadmissibility under § 209(c) because of his refugee status.40 Like Nguyen, the
alien argued that he remained a refugee and that he should be given an
opportunity to reapply for adjustment of status under § 209(a) in conjunction
with the waiver of inadmissibility under § 209(c).41 The BIA held as follows:
37
23 I. & N. Dec. 836 (BIA 2005).
38
Id. at 840, 842. Summarizing the refugee adjustment process set forth in In re Jean,
on which Nguyen relies, the BIA in In re Smriko held that “[t]he respondent’s argument that
the Attorney General’s termination of refugee status is a precondition to removal is directly
refuted by the statute, the promulgating regulation, and the Attorney General’s explanation
of the refugee adjustment process in [In re] Jean.” Id. at 840.
39
She points us to In re D-K-, 25 I. & N. Dec. 761 (BIA 2012); In re H-N-, 22 I. & N. Dec.
1039 (BIA 1999) (en banc); In re Jean, 23 I. & N. Dec. 373 (A.G. 2002). She also tries to
analogize her case to In re Rainford, 20 I. & N. Dec. 598 (BIA 1992) and In re Gabryelsky, 20
I. & N. Dec. 750 (BIA 1993).
40
24 I. & N. Dec. at 324–25.
41
Id. at 330.
12
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[T]he respondent’s eligibility for such relief is foreclosed by the plain
language of the statute, which declares that a refugee admitted
under [INA § 207] can be admitted as an immigrant only if he “has
not acquired permanent resident status.” [INA § 209(a)(1)(C)]. The
respondent previously acquired permanent resident status in April
1999 and is therefore prohibited from acquiring such status again
by means of section 209(a) of the [INA]. Moreover, inasmuch as the
respondent is ineligible to apply for adjustment of status under
section 209(a), he cannot obtain a section 209(c) waiver, which is
applicable only to an “alien seeking adjustment of status under
[section 209].”42
In re S-I-K- is a precedential decision and as such possibly entitled to Chevron
deference as explained above. We now hold that § 209 is sufficiently ambiguous
and that the BIA’s interpretation is reasonable, entitling the BIA to Chevron
deference. As a result, we agree that Nguyen is not entitled to readjust to LPR
status under § 209, and as such, is ineligible for the § 209(c) waiver.
We note that several of our sister courts have also agreed that an alien
who has already adjusted from refugee to LPR status is ineligible for a § 209(c)
waiver. The Fourth Circuit, in Saintha v. Mukasey,43 has applied Chevron
deference to the BIA’s determination that a refugee who has already acquired
LPR status is precluded from subsequently readjusting to LPR status and thus
is ineligible to seek a waiver of inadmissibility under § 209(c).44 The Third
Circuit has come to the same conclusion as well in an unpublished opinion.45 The
Seventh Circuit, while reaching the same conclusion, has gone a step further by
holding that refugees who have adjusted to LPR status no longer retain refugee
42
Id.
43
516 F.3d 243 (4th Cir. 2008).
44
Id. at 252–53.
45
Van v. Att’y Gen. of U.S., 395 F. App’x 889, 891–92 (3d Cir. 2010) (holding that
refugees who have already acquired LPR status are ineligible for a § 209(c) waiver in light of
the language in that adjustment of status can be granted to an alien “who has not acquired
permanent resident status.”).
13
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status.46 There is no need for us to reach that question today: whether a refugee
who has since adjusted to LPR status no longer has refugee status. But we do
note that our sister courts agree that a refugee who adjusts to LPR status can
no longer invoke the § 209(c) waiver. The Ninth Circuit has come to a similar
conclusion, but in the context of asylees rather than refugees.47 Finally, the
Eighth Circuit has refused to even consider a § 209(c) waiver in a removability
case because it “does not make an alien immune from removal.”48 While that
question is not in front of us either, the Eighth Circuit’s holding does continue
the trend of the § 209(c) waiver not being available to a refugee who has
previously adjusted to LPR status.
Nguyen’s citation to authority to the contrary fails to persuade. Her
citation to In re Smriko only proves that her refugee status is not necessarily
terminated. However, it does not prove that a refugee who has adjusted to LPR
status is entitled to readjust and use the § 209(c) waiver. Nguyen’s reliance on
In re D-K- is also unpersuasive, as that case involved a refugee who had not
adjusted status to that of a LPR.49 Similarly, her reliance on In re H-N- is
factually distinguishable because the alien in that case arrived in the United
States as a refugee, applied for an adjustment of status under § 209(a), and was
46
Gutnik v. Gonzales, 469 F.3d 683, 692 (7th Cir. 2006) (holding that an alien who
adjusted status from refugee to lawful permanent resident no longer qualified as a refugee and
was thus no longer eligible to apply for a waiver of inadmissibility in connection with an
adjustment of status under § 209), overruled on other grounds by Arobelidze v. Holder,
653
F.3d 513 (7th Cir. 2011).
47
Robleto-Pastora v. Holder, 591 F.3d 1051, 1060–62 (9th Cir. 2010) (determining that
an asylee who adjusted status to that of a lawful permanent resident was ineligible to readjust
status pursuant to INA § 209(b), and thus was ineligible for a § 209(c) waiver).
48
Freeman v. Holder, 596 F.3d 952, 957 (8th Cir. 2010). Freeman reasoned that § 209(c)
only “waives a ground of inadmissibility for the purpose of seeking adjustment of status.” Id.
Freeman had failed to appear at his adjustment of status hearing and his application for
adjustment of status had been denied. Id. at 957 n.4. Therefore, the only issue was whether
the § 209(c) waiver affected his removability directly. Id. at 957.
49
25 I. & N. Dec. at 761.
14
Case: 12-60364 Document: 00512414647 Page: 15 Date Filed: 10/21/2013
No. 12-60364
granted a § 209(c) waiver of inadmissibility; unlike Nguyen, she did not apply
for a readjustment of status after having been granted LPR status.50 Nguyen’s
citations to In re Rainford and In re Gabryelsky and their progeny are also
inapposite.51
Therefore, as a matter of first impression, we conclude that a refugee who
has already adjusted to LPR status may not readjust under INA § 209, and thus,
is not eligible for a § 209(c) waiver. Since Nguyen was ineligible for a § 209(c)
waiver, the BIA did not abuse its discretion in denying her motion for
reconsideration on this issue.
We, therefore, DENY her petition as to her § 209(c) claim.
* * *
PETITION IS DISMISSED IN PART; DENIED IN PART.
50
22 I. & N. Dec. at 1040.
51
These cases involved individuals with LPR status who were seeking to readjust under
a different provision, INA § 245(a). In re Rainford, 20 I. & N. Dec. at 599–600; In re
Gabryelsky, 20 I. & N. Dec. at 750–51. However, as explained above, Nguyen can only benefit
from § 209(c) if she is eligible to adjust under § 209, which she is not.
15
