Sammir A. Poveda v. U.S. Attorney General

692 F.3d 1168, 2012 WL 3655293, 2012 U.S. App. LEXIS 18159
CourtCourt of Appeals for the Eleventh Circuit
DecidedAugust 27, 2012
Docket11-14512
StatusPublished
Cited by43 cases

This text of 692 F.3d 1168 (Sammir A. Poveda v. U.S. Attorney General) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sammir A. Poveda v. U.S. Attorney General, 692 F.3d 1168, 2012 WL 3655293, 2012 U.S. App. LEXIS 18159 (11th Cir. 2012).

Opinions

PRYOR, Circuit Judge:

The main question presented by this petition for review is whether a removable alien is eligible for a waiver of inadmissability, under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h), if he remains within the United States, but fails to apply for an adjustment of his status, 8 U.S.C. § 1255. Sammir Poveda, a lawful permanent resident, petitions for review of a decision of the Board of Immigration Appeals that vacated an immigration judge’s decision that Poveda is eligible for a hardship waiver under section 212(h). The immigration judge had determined that Poveda is eligible for a hardship waiver based on a misreading of our decisions in Lanier v. United States Attorney General, 631 F.3d 1363 (11th Cir.2011), and Yeung v. INS, 76 F.3d 337 (11th Cir.1995). Poveda argues that, as an alien lawfully present in the United States, he need not concurrently apply for an adjustment of his status, but we must defer to the contrary interpretation of section 212(h) by the Board. See 8 U.S.C. § 1182(h); 8 C.F.R. § 1245.1(f). And we reject Poveda’s argument that the interpretation by the Board would violate his right to equal protection as a component of due process of law, U.S. Const. Amend. V. Poveda’s alternative argument that he qualifies as an inadmissable alien, 8 U.S.C. § 1101(a)(13), eligible for a hardship waiver under section 212(h) also fails. We deny Poveda’s petition for review.

I. BACKGROUND

Sammir Poveda is a native and citizen of Nicaragua. After his admittance into the United States, Poveda adjusted his status in 2002 to that of an alien lawfully admitted for permanent residence under the Nicaraguan Adjustment and Central American Relief Act of 1997, Pub. L. No. 105-100, 111 Stat. 2160, 2193 (1997). In 2007, a Florida court convicted Poveda of the offense of battery on a child by bodily fluids, see Fla. Stat. Ann. § 784.085(1), and soon afterward, the Department of Homeland Security commenced removal proceedings against him, see 8 U.S.C. §§ 1227(a)(2)(A)(i), 1227(a)(2)(A)(iii), 1227(a)(2)(E)(i).

[1172]*1172Poveda applied for a hardship waiver of removal under section 212(h). An immigration judge determined that Poveda was removable, but granted Poveda’s application for a waiver under section 212(h) by interpreting our decisions in Lanier and Yeung to mean that an alien is eligible for a hardship waiver regardless of whether the alien has concurrently applied for an adjustment of status. The government appealed that decision to the Board of Immigration Appeals.

The Board vacated the immigration judge’s decision, based on the decisions of two of our sister circuits, see Cabral v. Holder, 632 F.3d 886 (5th Cir.2011); Klementanovsky v. Gonzales, 501 F.3d 788 (7th Cir.2007), that an alien must “submit an application for a 212(h) waiver concurrently with an application for a visa, admission, or adjustment of status.” The Board also concluded that the immigration judge had misread our precedents. The Board reasoned that Lanier stood “for the proposition that an alien who adjusted to lawful permanent resident status is not necessarily barred from seeking a waiver under section 212(h) ... as a result of having been convicted of an aggravated felony,” and that the reference to Yeung in Lanier was intended to explain only “that a 212(h) waiver may be granted by an Immigration Judge in removal proceedings as opposed to being a form of relief restricted to aliens seeking physical entry into the United States.” Because it concluded that Poveda was ineligible for the hardship waiver, the Board ordered the removal of Poveda to Nicaragua.

II. STANDARDS OF REVIEW

“This Court reviews only the decision of the [Board], except to the extent that it expressly adopts the [immigration judge’s] opinion.” Nreka v. U.S. Att’y Gen., 408 F.3d 1361, 1368 (11th Cir.2005) (internal quotation marks omitted). “To the extent that the [Board’s] ... decision was based on a legal determination, review is de novo.” Id. Although we lack jurisdiction “to review a decision of the Attorney General to grant or deny a waiver,” 8 U.S.C. § 1182(h), “[w]e have jurisdiction to review the legal question of whether [Poveda] is statutorily eligible to apply for a § 212(h) waiver.” Lanier, 631 F.3d at 1365 n. 2. And, we have jurisdiction to consider constitutional challenges to the interpretation by the Board of the statute it administers. See 8 U.S.C. § 1252(a)(2)(D). Although “[w]e review the [Board’s] statutory interpretation de novo,” we “will defer to the [Board’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., 432 F.3d 1346, 1350 (11th Cir.2005). “[J]udicial deference to the Executive Branch is especially appropriate in the immigration context.” INS v. Aguirre-Aguirre, 526 U.S. 415, 425, 119 S.Ct. 1439, 1445, 143 L.Ed.2d 590 (1999). “We review constitutional challenges ... de novo,” Lapaix v. U.S. Att’y Gen., 605 F.3d 1138, 1143 (11th Cir.2010), and “federal classifications such as those at issue in § 212 of the [Act] are subject to minimal scrutiny under the rational basis standard of review, and are valid if not arbitrary or unreasonable.” Yeung, 76 F.3d at 339. “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.” Id.

III. DISCUSSION

We divide our discussion in two parts. First, we discuss whether Poveda, as an alien within our borders, is eligible for a hardship waiver without concurrently applying for an adjustment of his status. Second, we discuss whether Poveda is an applicant for admission.

[1173]*1173 A. As an Alien Within Our Borders, Poveda is Ineligible for a Hardship Waiver Unless He Applies for an Adjustment of His Status.

“Section 212(h)(1)(B) of the [Act] gives the Attorney General the discretion to waive the immigration consequences of certain criminal convictions if a person demonstrates that [his or] her removal or denial of admission would result in extreme hardship to a U.S.

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Bluebook (online)
692 F.3d 1168, 2012 WL 3655293, 2012 U.S. App. LEXIS 18159, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sammir-a-poveda-v-us-attorney-general-ca11-2012.