Argued on May 22, 2013
Petition for Review of an Order of the Board of Immigration Appeals Agency No. A035-362-472
Sandra L. Greene, Esquire (Argued) GreeneFitzgerald Advocates and Consultants Counsel for Petitioner.
Eric Holder, Jr., Esquire United States Attorney General Stuart F. Delery, Esquire Acting Assistant Attorney General Civil Division Cindy S. Ferrier Assistant Director Office of Immigration Litigation Thomas W. Hussey, Esquire Sunah Lee, Esquire (Argued) Brooke M. Maurer, Esquire United States Department of Justice Office of Immigration Litigation Civil Division Counsel for Respondent.
BEFORE: RENDELL and GREENAWAY, JR., Circuit Judges, ROSENTHAL, District Judge [*]
RENDELL, Circuit Judge.
Orlando Fernandez Taveras petitions for review of the Board of Immigration Appeals ("BIA") June 2012 order of removal. The removal order was based on two convictions for petty larceny, both crimes of moral turpitude under the Immigration and Nationality Act ("INA"). The BIA rejected Fernandez Taveras's argument that he was eligible for adjustment of status or waiver of inadmissibility under § 212(h) of the INA, notwithstanding a 1999 drug conviction. Fernandez Taveras urged that, because he had previously been granted a cancellation of removal under INA § 240A(a), the conviction that formed the basis of the prior removal proceedings—his 1999 drug conviction—had been "waived" and could not be relied upon in the later proceeding to render him statutorily ineligible for adjustment of status and § 212(h) waiver. The Immigration Judge agreed with Fernandez Taveras, but the BIA reversed. Fernandez Taveras's petition raises this issue, and for the reasons that follow, we will deny his petition.
Fernandez Taveras, a native and citizen of the Dominican Republic, entered the United States as a lawful permanent resident in February 1978. He was one year old at the time, and has since left the country only twice—once at age five and again at age thirteen. In December 2009, he married a United States citizen. He also is a father of two children who are United States citizens: a fifteen-year-old daughter from a prior relationship, and a five-year-old daughter with his wife. Additionally, he has other family ties in the United States, including his mother, siblings, aunts, and cousins, who are citizens or lawful permanent residents of the United States.
The Department of Homeland Security ("DHS") initiated removal proceedings against Fernandez Taveras in 2003 based upon his 1999 conviction under New York state law for criminal possession of a controlled substance, specifically, crack cocaine (the "1999 drug conviction"). The DHS sought to remove Fernandez Taveras as an alien deportable for a controlled substance violation, other than a single offense involving possession for one's own use of 30 grams or less of marijuana, pursuant to INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i). Fernandez Taveras sought cancellation of removal under INA § 240A(a), 8 U.S.C. § 1229b(a), which provides relief from removal for certain permanent residents who can demonstrate a lengthy physical presence and substantial ties in the United States, and have not committed an aggravated felony. INA § 240A(a), 8 U.S.C. § 1229b(a). The Immigration Judge ("IJ") granted his application for cancellation of removal in 2004, which terminated the removal proceedings.
Over five years later, in January 2010, the DHS instituted a second removal proceeding against Fernandez Taveras. This time, the Notice to Appear charged Fernandez Taveras with removability under INA § 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii), as an alien deportable for committing two or more crimes involving moral turpitude ("CIMT"). Specifically, Fernandez Taveras's removal proceedings arose from two convictions in 2006 and 2008 for petit larceny under New York state law.
Fernandez Taveras admitted the factual allegations in the Notice to Appear, and conceded that he was removable as charged. Fernandez Taveras then sought relief from removal by filing an application for adjustment of status under INA § 245(a), 8 U.S.C. § 1255(a), and an application for a waiver of inadmissibility under INA § 212(h), 8 U.S.C. § 1182(h).
The IJ issued an oral decision finding that Fernandez Taveras was removable as an alien deportable for committing two CIMT as defined in the statute. However, the IJ granted Fernandez Taveras a § 212(h) waiver and granted his application for adjustment of status. Because Fernandez Taveras's 1999 drug conviction had been the basis for the prior proceedings, which resulted in the cancellation of removal, the IJ accepted Fernandez Taveras's argument that he had essentially received a "waiver" of that conviction such that he could no longer be found inadmissible for that offense under INA § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II), or ineligible for § 212(h) waiver.
The IJ rejected the contrary view of the Fifth Circuit Court of Appeals in De Hoyos v. Mukasey, 551 F.3d 339, 342 (5th Cir. 2008), finding it distinguishable, in part, because, in the IJ's view, it did not account for the INA's statutory scheme, particularly § 101(a)(13)(C)(v), 8 U.S.C. § 1101(a)(13)(C)(v). As we discuss below, this provision governs matters concerning whether lawful permanent residents reentering the United States are "seeking admission." The IJ, however, read § 101(a)(13)(C)(v) to apply to an alien seeking adjustment of status, and to suggest "that once a waiver is granted for an offense under Section 240A(a) of the INA, that that alien will not be subsequently inadmissible for that offense." App. at 49. Accordingly, the IJ concluded, Fernandez Taveras was "statutorily eligible to apply for adjusting of status and for a waiver under Section 212(h) of the ...