NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 17-3433 ___________
JARVIN ORLANDO LOPEZ, a/k/a JARVIN ORLANDO CRUZ-LOPEZ,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA ____________________________________
On Petition for Review of a Decision of the United States Department of Justice Board of Immigration Appeals (BIA-1: A094-481-777) Immigration Judge: Honorable Walter A. Durling ____________________________________
Argued: September 7, 2018
Before: HARDIMAN, KRAUSE, and BIBAS, Circuit Judges
(Opinion filed: December 21, 2018)
Sandra L. Greene [Argued] Greene Fitzgerald Advocates and Consultants 2575 Eastern Boulevard Suite 208 York, PA 17402
Counsel for Petitioner James A. Hurley [Argued] Kiley Kane Chad A. Readler United States Department of Justice Office of Immigration Litigation Room 5009, P.O. Box 878 Ben Franklin Station Washington, DC 20044
Counsel for Respondent
OPINION*
KRAUSE, Circuit Judge.
Jarvin Orlando Lopez, an alien from El Salvador, petitions for review of two
orders of the Board of Immigration Appeals (BIA) affirming the rejection of his
applications for withholding of removal, for relief under the Convention Against Torture
(CAT), and for cancellation of removal under the Nicaraguan Adjustment and Central
American Relief Act (NACARA). We will deny the petition as to withholding of
removal and CAT relief, but we will grant it and remand to the BIA for further
consideration and explanation as to relief under NACARA.
I. Background
Lopez applied for relief from deportation on several grounds. In one order dated
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.
2 March 3, 2017, the BIA affirmed the Immigration Judge’s rejections of Lopez’s
applications for withholding of removal and CAT relief. In a second order issued
October 10, 2017, the BIA also affirmed the rejection of his application for cancellation
of removal under Section 203(b) of NACARA, Pub. L. No. 105-100, 111 Stat. 2160,
2198–2201 (1997), concluding that Lopez was subject to NACARA’s heightened
eligibility criteria that apply to aliens who are “inadmissible under Section 212(a)(2)” of
the Immigration and Nationality Act (INA) as the result of a controlled-substance
conviction, 8 C.F.R. § 1240.66(c)(1). Lopez urged that if he were allowed to seek a
concurrent waiver of inadmissibility pursuant to Section 212(h) of the INA, he then
would satisfy the less demanding criteria that apply to aliens who are not inadmissible
under Section 212(a)(2). But the BIA did not acknowledge or address the effect of a
concurrent waiver request on Lopez’s NACARA eligibility. Instead, it offered only the
cryptic remark that “[e]ven assuming [Lopez] was entitled to a waiver under section
212(h) . . . , [he] has not satisfied his burden for relief under NACARA.” A.R. 8.
II. Discussion
Lopez petitions for review of both BIA orders. For the reasons set forth below, we
will deny the petition for review as to the first order (concerning withholding of removal
and CAT relief), but we will grant it and remand for a more reasoned decision from the
BIA under the Chenery doctrine as to the second (concerning the concurrent Section
212(h) waiver and relief under NACARA).
A. Withholding of Removal and CAT Relief
Because Lopez’s removal order resulted from a controlled-substance conviction
3 covered by 8 U.S.C. § 1182(a)(2), our jurisdiction here is limited to de novo review of
“constitutional claims or questions of law,” 8 U.S.C. § 1252(a)(2)(C)–(D). See Fan
Wang v. Att’y Gen., 898 F.3d 341, 343 (3d Cir. 2018).
To the extent Lopez raises a legal challenge to the BIA’s denial of withholding of
removal, it is not one that entitles him to relief. Lopez must show (1) the existence of “a
particular social group that is legally cognizable,” (2) “membership in that group,” and
(3) “a well-founded fear of persecution” connected to group membership. S.E.R.L v.
Att’y Gen., 894 F.3d 535, 544 (3d Cir. 2018). “Persecution” must be conducted by a
foreign government or “by forces the government is unable or unwilling to control.”
Valdiviezo-Galdamez v. Att’y Gen., 663 F.3d 582, 591 (3d Cir. 2011) (citation omitted).
Lopez argues that the BIA committed legal error on the first prong by failing to apply the
proper standard governing the particularity of the social group to which he purportedly
belongs. But any such error would be harmless, Li Hua Yuan v. Att’y Gen., 642 F.3d 420,
427 (3d Cir. 2011), because—in fact-finding that we lack jurisdiction to review, see Roye
v. Att’y Gen., 693 F.3d 333, 339 (3d Cir. 2012)—the Immigration Judge determined that
Lopez failed on the third prong to prove the Salvadoran government was unable or
unwilling to protect him, and the BIA affirmed on that ground as well.
With respect to CAT relief, Lopez contends that the BIA violated his due process
rights by failing to adequately address his arguments. Specifically, he claims that “he had
no reasonable opportunity to present his case,” Petitioner’s Br. 37, because the BIA did
not “provide any rationale justifying its denial of [his] CAT claim on acquiescence
grounds,” id. at 36. Lopez points to nothing, however, that demonstrates the BIA
4 “prevented [him] from reasonably presenting his case,” and we see no such evidence in
the record. Fadiga v. Att’y Gen., 488 F.3d 142, 155 (3d Cir. 2007) (citation omitted).
We will not recast mere disagreement with the BIA’s decision as a procedural due
process violation.
B. NACARA Relief
As to NACARA relief, Lopez concedes that he could not meet the heightened
criteria for aliens who are “inadmissible” because he could not establish ten years of
continued physical presence in the United States immediately following his controlled-
substance conviction. See 8 C.F.R. § 1240.66(c). The physical-presence requirement for
aliens who are “not inadmissible,” however, is seven years of continuous physical
presence preceding the NACARA application, see id. § 1240.66(b), which it appears
Lopez could satisfy. And Lopez claims, if permitted to apply for a concurrent waiver of
inadmissibility under Section 212(h), he would be deemed “not inadmissible” and thus be
subject to this less stringent requirement because Section 212(h) authorizes a waiver of
Free access — add to your briefcase to read the full text and ask questions with AI
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 17-3433 ___________
JARVIN ORLANDO LOPEZ, a/k/a JARVIN ORLANDO CRUZ-LOPEZ,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA ____________________________________
On Petition for Review of a Decision of the United States Department of Justice Board of Immigration Appeals (BIA-1: A094-481-777) Immigration Judge: Honorable Walter A. Durling ____________________________________
Argued: September 7, 2018
Before: HARDIMAN, KRAUSE, and BIBAS, Circuit Judges
(Opinion filed: December 21, 2018)
Sandra L. Greene [Argued] Greene Fitzgerald Advocates and Consultants 2575 Eastern Boulevard Suite 208 York, PA 17402
Counsel for Petitioner James A. Hurley [Argued] Kiley Kane Chad A. Readler United States Department of Justice Office of Immigration Litigation Room 5009, P.O. Box 878 Ben Franklin Station Washington, DC 20044
Counsel for Respondent
OPINION*
KRAUSE, Circuit Judge.
Jarvin Orlando Lopez, an alien from El Salvador, petitions for review of two
orders of the Board of Immigration Appeals (BIA) affirming the rejection of his
applications for withholding of removal, for relief under the Convention Against Torture
(CAT), and for cancellation of removal under the Nicaraguan Adjustment and Central
American Relief Act (NACARA). We will deny the petition as to withholding of
removal and CAT relief, but we will grant it and remand to the BIA for further
consideration and explanation as to relief under NACARA.
I. Background
Lopez applied for relief from deportation on several grounds. In one order dated
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.
2 March 3, 2017, the BIA affirmed the Immigration Judge’s rejections of Lopez’s
applications for withholding of removal and CAT relief. In a second order issued
October 10, 2017, the BIA also affirmed the rejection of his application for cancellation
of removal under Section 203(b) of NACARA, Pub. L. No. 105-100, 111 Stat. 2160,
2198–2201 (1997), concluding that Lopez was subject to NACARA’s heightened
eligibility criteria that apply to aliens who are “inadmissible under Section 212(a)(2)” of
the Immigration and Nationality Act (INA) as the result of a controlled-substance
conviction, 8 C.F.R. § 1240.66(c)(1). Lopez urged that if he were allowed to seek a
concurrent waiver of inadmissibility pursuant to Section 212(h) of the INA, he then
would satisfy the less demanding criteria that apply to aliens who are not inadmissible
under Section 212(a)(2). But the BIA did not acknowledge or address the effect of a
concurrent waiver request on Lopez’s NACARA eligibility. Instead, it offered only the
cryptic remark that “[e]ven assuming [Lopez] was entitled to a waiver under section
212(h) . . . , [he] has not satisfied his burden for relief under NACARA.” A.R. 8.
II. Discussion
Lopez petitions for review of both BIA orders. For the reasons set forth below, we
will deny the petition for review as to the first order (concerning withholding of removal
and CAT relief), but we will grant it and remand for a more reasoned decision from the
BIA under the Chenery doctrine as to the second (concerning the concurrent Section
212(h) waiver and relief under NACARA).
A. Withholding of Removal and CAT Relief
Because Lopez’s removal order resulted from a controlled-substance conviction
3 covered by 8 U.S.C. § 1182(a)(2), our jurisdiction here is limited to de novo review of
“constitutional claims or questions of law,” 8 U.S.C. § 1252(a)(2)(C)–(D). See Fan
Wang v. Att’y Gen., 898 F.3d 341, 343 (3d Cir. 2018).
To the extent Lopez raises a legal challenge to the BIA’s denial of withholding of
removal, it is not one that entitles him to relief. Lopez must show (1) the existence of “a
particular social group that is legally cognizable,” (2) “membership in that group,” and
(3) “a well-founded fear of persecution” connected to group membership. S.E.R.L v.
Att’y Gen., 894 F.3d 535, 544 (3d Cir. 2018). “Persecution” must be conducted by a
foreign government or “by forces the government is unable or unwilling to control.”
Valdiviezo-Galdamez v. Att’y Gen., 663 F.3d 582, 591 (3d Cir. 2011) (citation omitted).
Lopez argues that the BIA committed legal error on the first prong by failing to apply the
proper standard governing the particularity of the social group to which he purportedly
belongs. But any such error would be harmless, Li Hua Yuan v. Att’y Gen., 642 F.3d 420,
427 (3d Cir. 2011), because—in fact-finding that we lack jurisdiction to review, see Roye
v. Att’y Gen., 693 F.3d 333, 339 (3d Cir. 2012)—the Immigration Judge determined that
Lopez failed on the third prong to prove the Salvadoran government was unable or
unwilling to protect him, and the BIA affirmed on that ground as well.
With respect to CAT relief, Lopez contends that the BIA violated his due process
rights by failing to adequately address his arguments. Specifically, he claims that “he had
no reasonable opportunity to present his case,” Petitioner’s Br. 37, because the BIA did
not “provide any rationale justifying its denial of [his] CAT claim on acquiescence
grounds,” id. at 36. Lopez points to nothing, however, that demonstrates the BIA
4 “prevented [him] from reasonably presenting his case,” and we see no such evidence in
the record. Fadiga v. Att’y Gen., 488 F.3d 142, 155 (3d Cir. 2007) (citation omitted).
We will not recast mere disagreement with the BIA’s decision as a procedural due
process violation.
B. NACARA Relief
As to NACARA relief, Lopez concedes that he could not meet the heightened
criteria for aliens who are “inadmissible” because he could not establish ten years of
continued physical presence in the United States immediately following his controlled-
substance conviction. See 8 C.F.R. § 1240.66(c). The physical-presence requirement for
aliens who are “not inadmissible,” however, is seven years of continuous physical
presence preceding the NACARA application, see id. § 1240.66(b), which it appears
Lopez could satisfy. And Lopez claims, if permitted to apply for a concurrent waiver of
inadmissibility under Section 212(h), he would be deemed “not inadmissible” and thus be
subject to this less stringent requirement because Section 212(h) authorizes a waiver of
inadmissibility where, as here, the controlled-substance conviction “relates to a single
offense of simple possession of 30 grams or less of marijuana.” 8 U.S.C. § 1182(h).
For its part, the Government argues that Lopez is not entitled to seek a concurrent
Section 212(h) waiver, and its position finds some support in BIA precedent and the text
of the relevant statutes and regulations. A Section 212(h) waiver is available only where
“the Attorney General . . . has consented to the alien’s applying or reapplying for” one of
three forms of relief: “a visa, . . . admission to the United States, or adjustment of status.”
8 U.S.C. § 1182(h)(2). And, as the BIA observed in Matter of Y-N-P- in interpreting an
5 analogous cancellation-of-removal provision under Section 240A of the INA, an
application for cancellation of removal does not clearly fit within those three categories.
See Matter of Y-N-P-, 26 I. & N. Dec. 10, 12–16 (2012). Instead, the BIA there
determined that “adjustment of status” in Section 212(h) must refer only to applications
for adjustment of status under Section 245 of the INA, not to applications for cancellation
of removal under Section 240A. See id. at 15–16; see also 8 C.F.R. § 1245.1(f). The
BIA also attached significance to the fact that Congress explicitly provided for the
availability of a concurrent waiver under Section 237(a)(7) in connection with an
application for cancellation of removal under the Special Rule for a Battered Spouse or
Child, 8 U.S.C. §§ 1229b(b)(2), 1229b(b)(5). See Matter of Y-N-P-, 26 I. & N. Dec. at
16–17. Thus, Matter of Y-N-P- could be read to suggest that, unless Congress has
expressly provided otherwise, a concurrent waiver under Section 212(h) is available only
in connection with an application for adjustment of status under Section 245 and is
unavailable in connection with an application that seeks merely cancellation of removal.
See id. at 18–19. It could also, however, be read as discussing only applications for
cancellation under Section 240A.
Here, Lopez’s only pending application for relief is for cancellation of removal
under Section 203(b) of NACARA,1 so that, as the Government argues, the distinctions
1 Lopez originally applied both for adjustment of status and for cancellation of removal under NACARA, but withdrew his adjustment of status application. In any event, Lopez was clearly ineligible for adjustment-of-status relief under NACARA, which is only available to nationals of Nicaragua and Cuba. See NACARA § 202(b)(1), 111 Stat. at 2194. 6 drawn in Matter of Y-N-P- between adjustment of status and cancellation of removal may
pertain. As with Section 245 and Section 240A, NACARA provides for adjustment of
status and cancellation of removal in separate provisions. Compare NACARA § 202(a),
111 Stat. at 2193 (providing for “Adjustment of Status” relief, requiring that an alien
“applies for . . . adjustment,” and referring to Section 245 of the INA), with id. § 203(b),
111 Stat. at 2198 (providing for “Special Rule for Cancellation of Removal,” largely
mirroring the text of Section 240A, and specifying that adjustment of status will occur as
a result of cancellation without separate application for adjustment of status). Moreover,
while 8 C.F.R. § 1245.1(f) specifies that “an application under [Part 1245 of 8 C.F.R.]
shall be the sole method of requesting the exercise of discretion under section[] 212 . . .
(h),” an applicant for cancellation of removal under Section 203(b) must file a Form I-
881, which is defined outside of Part 1245, see 8 C.F.R. § 1240.63(a). And although the
regulations implementing NACARA explicitly speak to the concurrent availability of the
Section 212(h) waiver in connection with an application for adjustment of status under
Section 202 of NACARA, they do not do so with respect to Section 203(b) of NACARA.
See 8 C.F.R. § 1245.13(c)(1) (“An applicant under section 202 of [NACARA] may also
apply for one or more of the immigrant waivers of inadmissibility under section 212 of
the Act . . . .”).
Whatever the merits of the arguments put forward by Lopez and the Government
on the availability of concurrent waiver, however, the interplay among NACARA,
Section 212(h) waiver, the related regulations, and the reasoning of Matter of Y-N-P- has
not been addressed by the BIA previously, nor did the BIA engage it here. Because we
7 may not “intrude upon the domain which Congress has exclusively entrusted to” the BIA
by affirming on a ground other than “upon which [its] administrative order . . . was
based,” SEC v. Chenery Corp. (Chenery I), 318 U.S. 80, 87–88 (1943), we will grant the
petition and remand for the BIA to consider the arguments presented and to articulate the
reasoning underlying its decision.2
III. Conclusion
For the aforementioned reasons, we will deny the petition as to the BIA’s March 3,
2017 order, will grant the petition as to the BIA’s October 10, 2017 order, will vacate the
October 10, 2017 order, and will remand to the BIA for proceedings consistent with this
opinion.
2 In view of our remand, we need not reach Lopez’s claim that the BIA’s explanation to date for denying him relief under NACARA was constitutionally deficient. 8