Gallimore v. Attorney General of the United States

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 08-3379

_____________

EARL WOODROW GALLIMORE,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

_______________

On Petition for Review of an Order of the

Board of Immigration Appeals

Agency No. A72-749-146

Immigration Judge: Margaret R. Reichenberg

________________

Argued June 10, 2010

Before: AMBRO, CHAGARES, and GREENAWAY, JR.,

Circuit Judges.

(Filed: August 20, 2010)

_________________

Nita Dobroshi, Esq. (Argued)

Spar & Bernstein

225 Broadway, Ste. 512

New York, NY 10007

Attorney for Petitioner

Aliza B. Alyeshmerni, Esq.

Sharon M. Clay, Esq. (Argued)

Allen W. Hausman, Esq.

Thomas W. Hussey, Esq.

United States Department of Justice

Office of Immigration Litigation, Civil Division

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Attorneys for Respondent

_______________

OPINION

_______________

CHAGARES, Circuit Judge.

Earl Woodrow Gallimore petitions this Court to review a

final order of removal issued by the Board of Immigration Appeals

(“BIA”). After finding Gallimore removable, an Immigration

Judge (“IJ”) concluded that he is ineligible by law to receive a

discretionary waiver of removal. Gallimore appealed to the BIA,

challenging only the IJ’s waiver determination. The BIA affirmed

on alternative grounds that it raised sua sponte, and this petition

followed. We will grant the petition and remand to the BIA for

further proceedings.

I.

Gallimore is a 48-year-old native and citizen of Jamaica. He

entered the United States on August 7, 1993 pursuant to a valid

non-immigrant visa. On September 25, 1993, while driving on a

New Jersey roadway with a female companion, police officers

stopped Gallimore and recovered five pounds of marijuana from

the vehicle. Gallimore was detained and questioned, and although

he claims that he did not know he had been formally arrested, he

appears to have spent three or four days in custody. Joint

Appendix (“JA”) 406. On December 3, 1993, a grand jury returned

a sealed indictment against Gallimore, charging him with, inter

alia, possession with intent to distribute five pounds or more of

2

marijuana, in violation of N.J. Stat. Ann. §§ 2C:35-5a(1) and

2C:35-5b(10)(b). JA 408. Gallimore claims that he was not aware

of the indictment at the time it was returned.

On January 12, 1994, Gallimore married a United States

citizen. On April 14, 1994, he and his wife filed a joint petition

and application for an adjustment of status, seeking that he be

reclassified as a lawful permanent resident (“LPR”). On the Form

I-485 that Gallimore completed, he answered “no” to the following

question: “Have you ever, in or outside the U.S. . . .[,] been

arrested, cited, charged, indicted, fined, or imprisoned for breaking

or violating any law or ordinance . . . ?” JA 403. He answered

similarly during an interview in support of the application. On July

6, 1994, the Immigration and Naturalization Service (“INS”)

approved the application and adjusted Gallimore’s status to LPR on

a conditional basis. See 8 U.S.C. § 1186a.1

On November 13, 1994, Gallimore was arrested on the

still-pending indictment. He claims that this was the first time he

learned of the drug charges against him. Though he originally

pleaded not guilty, Gallimore ultimately reversed course and

entered a guilty plea on March 10, 1995. JA 406-07. He was

sentenced to time served – six days, which included the three or

four days he appears to have served after being detained in

September 1993. JA 406.

On April 1, 1996, Gallimore and his wife filed a petition to

have the conditions on his LPR status removed. JA 399-400. On

the Form I-751 filed in support of the petition, he answered “no”

to the following question: “Since becoming a conditional resident,

have you ever been arrested, cited, charged, indicted, convicted,

fined, or imprisoned for breaking or violating any law or

ordinance[?]” JA 400. Gallimore claims that his wife completed

the form without knowing about his conviction. He admits,

however, that he signed the form. The INS approved the petition

1

For ease of reference, we refer hereafter to aliens whose

status is adjusted pursuant to § 1186a as “conditional LPRs” or

“conditional permanent residents.”

3

on August 22, 1996. JA 399.

Five years later, on December 17, 2001, Gallimore applied

for naturalization. JA 395-98. For the first time, he disclosed on

the citizenship application his 1993 arrest, his 1995 conviction, and

his sentence. JA 397. On July 11, 2005, because of the conviction

and his previous failure to disclose it, Gallimore’s application for

citizenship was denied for poor moral character.

On April 3, 2006, United States Citizenship and

Immigration Services (“CIS”) issued Gallimore a Notice to Appear

(“NTA”) (and later supplemented it), charging him as removable

pursuant to three statutory provisions of the Immigration and

Nationality Act (“INA”), codified at 8 U.S.C. § 1101, et seq. First,

the NTA charged Gallimore as removable under 8 U.S.C. §

1227(a)(1)(A) for being, at the time of re-entry or adjustment of

status, within a class of inadmissible aliens. Specifically, the NTA

alleged that Gallimore was inadmissible under 8 U.S.C. §

1182(a)(6)(C)(i) for having engaged in fraud or willful

misrepresentation of a material fact to obtain admission,

documentation, or other benefit under the INA. Second, the NTA

charged Gallimore as removable under § 1227(a)(2)(A)(iii) for

having been convicted of an aggravated felony. Third, the NTA

charged Gallimore as removable under § 1227(a)(2)(B)(i) for

having been convicted of a qualifying controlled substance

violation. JA 457.2

Regarding the first charge of removability, the amended

NTA alleged:

You procured your admission, visa, adjustment, or

other documentation or benefit by fraud or by

willfully misrepresenting a material fact, to wit: You

failed to admit, on your I-485 application that was

submitted on 4/14/94 and while being questioned

2

Gallimore does not dispute that his conviction constitutes

both an aggravated felony and a qualifying controlled substance

violation.

4

under oath by a Service Officer on 6/30/94, and on

your I-751 form that was executed by you on April

1, 1996 . . . , to your prior drug trafficking activities

that occurred on December 3, 1993 [3] as is evidenced

by an indictment against you and your admission of

guilt before the New Jersey Superior Court to a

charge in that indictment. Those misrepresentations

were made by you in order to have the Service grant

you permanent resident status.

JA 414. Gallimore denied removability and the factual allegations

supporting the charges. He also applied for cancellation of

removal, waiver of removal, and termination or closure of the

proceedings. The IJ held five days of removal proceedings, during

which Gallimore testified. Among other things, he claimed that he

had been detained for only one and one-half or two hours on

September 25, 1993, and that he did not understand at the time that

he had been arrested. JA 150-51.

In an oral opinion, the IJ found that the Government had

proved by clear and convincing evidence that Gallimore was

removable on all three charged grounds. JA 83-84. With respect

to the charge of removability based on Gallimore’s

misrepresentations, the IJ found that he had willfully failed to

disclose his 1993 arrest on both the Form I-485 and the Form

I-751, and during his June 30, 1994 interview. JA 84. She found

further that Gallimore had willfully failed to mention the

conviction on the Form I-751 submitted to remove the conditions

on his LPR status. Id. The IJ rejected Gallimore’s intimation “that

anyone other than [himself] bore responsibility for these

omissions.” JA 85. The IJ concluded that Gallimore had made the

misrepresentations “so he could maintain his eligibility for these

application[s] because clearly if he had revealed th[e] conviction

he would not have been eligible for the benefits he was seeking.”

Id. She “was not persuaded by [Gallimore’s] self-serving

3

This date is obviously incorrect. December 3, 1993 is the

date the indictment was returned. The correct date of Gallimore’s

drug activities is September 25, 1993. JA 408.

5

testimony that he was the innocent dupe in all of these filings with

false information[.]” JA 88.

Turning to Gallimore’s requested bases for relief from

removal, the IJ denied termination and administrative closure of the

removal proceedings. JA 86-87. She also pretermitted his

application for cancellation of removal, as 8 U.S.C. §

1229b(b)(1)(C) clearly rendered him ineligible for such relief. JA

87-88. Finally – and central to this petition – the IJ held that

Gallimore was not eligible for a waiver under former INA § 212(c)

“because he did not obtain his permanent residence without

willfully misrepresenting [a] material fact.” JA 87. Citing Matter

of T---, 6 I. & N. Dec. 136 (BIA 1954), the IJ concluded that

Gallimore had never been “‘lawfully’ admitted as a lawful

permanent resident” – a necessary prerequisite for § 212(c) relief

– because he had obtained his original status adjustment through

willful misrepresentation. JA 87. The IJ therefore denied the

waiver application and issued an order of removal. JA 78-79.

Gallimore timely appealed to the BIA, challenging only the

IJ’s waiver analysis. The BIA affirmed the IJ’s order on alternative

grounds and dismissed the appeal. JA 2-3. The BIA agreed with

the IJ’s ultimate conclusion that Gallimore had not been “lawfully

admitted for permanent residence” under § 212(c), and that he was

therefore ineligible for a waiver. But it did so on the basis that his

1995 conviction alone precluded such relief. Without referencing

Gallimore’s initial 1994 status adjustment, the BIA explained:

[T]he respondent’s 1995 drug conviction clearly

rendered him inadmissible to the United States under

[8 U.S.C. § 1182(a)(2)(A)(i)(II)] as it then existed.

This inadmissibility rendered the respondent

statutorily ineligible for adjustment of status because

it precluded him from demonstrating that he was

“admissible to the United States for permanent

residence,” as required by [8 U.S.C. § 1255(a)(2)] .

. . . Thus, although the respondent’s status was

adjusted to that of a lawful permanent resident in

1996 in compliance with procedural formalities, he

was never “lawfully” admitted for permanent

6

residence within the meaning of former [§] 212(c) of

the Act because at the time of adjustment he could

not satisfy the substantive legal requirements

associated with that status.

JA 2-3. In support of its explanation, the BIA cited decisions from

the Courts of Appeals for the Second, Fifth, Eighth, Ninth, and

Eleventh Circuits, as well as two of its own decisions. JA 3.

Given its holding, the BIA specifically declined to review the IJ’s

analysis regarding Gallimore’s alleged misrepresentations, again

omitting mention of his 1994 status adjustment:

Because the respondent’s 1995 drug conviction was

sufficient, without more, to preclude his 1996

adjustment of status from being considered “lawful”

within the meaning of former [§] 212(c), we need

not decide at this time whether, at the time of his

adjustment, the respondent was also inadmissible for

willfully misrepresenting a material fact.

JA 3. Gallimore then filed this petition for review.4

4

We have jurisdiction to review the BIA’s final order of

removal under 8 U.S.C. § 1252. The issues of statutory

interpretation presented to us are pure questions of law, and we

review them de novo, subject to applicable principles of agency

deference. See Valansi v. Ashcroft, 278 F.3d 203, 207-09 (3d Cir.

2002) (discussing principles of deference under Chevron U.S.A.,

Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837

(1984)). Though the BIA agreed with the IJ’s ultimate legal

conclusion, it did so for expressly different reasons. Accordingly,

because it did not adopt or defer to the IJ’s findings or analysis, we

review only the BIA’s decision. Kang v. Att’y Gen., __ F.3d __,

__, No. 08-4790, 2010 U.S. App. LEXIS 13958, at *11 (3d Cir.

July 8, 2010); Voci v. Gonzales, 409 F.3d 607, 612 (3d Cir. 2005);

Abdulai v. Ashcroft, 239 F.3d 542, 549 n.2 (3d Cir. 2001).

7

II.

Gallimore argues that the BIA erred when it held that his

conviction alone rendered him ineligible for discretionary relief

under INA § 212(c). Because the BIA’s analysis in all likelihood

rests on an historically inaccurate premise, it cannot stand.

Alternatively, to the extent that one can glean from the BIA’s

opinion an interpretation theoretically supporting its disposition,

we hold that the BIA’s opinion fails adequately to explain its

reasoning and, in any event, appears incorrect as a matter of law.

Whatever the case, the BIA’s opinion is insufficient to support its

dismissal of Gallimore’s appeal. We will therefore grant the

petition and remand the matter to the BIA for further proceedings.

A.

An alien may obtain LPR status under the INA by virtue of

his marriage to a citizen of the United States. Pursuant to 8 U.S.C.

§ 1186a, that status is “conditional” for the first two years of the

marriage. See Vasquez v. Holder, 602 F.3d 1003, 1006 (9th Cir.

2010); Cabrera-Perez v. Gonzales, 456 F.3d 109, 111 (3d Cir.

2006) (per curiam). Subparagraph (a)(1) provides that “an alien

spouse . . . 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.” 8 U.S.C. § 1186a(a)(1). The purpose of this

scheme is obvious: to ferret out sham marriages entered into for

the purpose of obtaining entry into the United States. See

Cabrera-Perez, 456 F.3d at 111; see also Carpio v. Holder, 592

F.3d 1091, 1094 (10th Cir. 2010) (“Congress passed the

Immigration Marriage Fraud Amendments (IMFA) [containing §

1186a] . . . , which sought to deter fraud by aliens seeking to

acquire lawful permanent residence in the United States based on

marriage to United States citizens or lawful permanent resident

aliens.”); Choin v. Mukasey, 537 F.3d 1116, 1120 (9th Cir. 2008)

(“The purpose of the IMFA was ‘to deter immigration-related

marriage fraud and other immigration fraud.’” (citation omitted)).

Under § 1186a, if at any time before the second anniversary

of the alien having obtained conditional LPR status, the Attorney

8

General learns that the marriage was fraudulent or has been

annulled or terminated, the Attorney General “shall terminate the

permanent resident status of the alien . . . as of the date of the

determination.” 8 U.S.C. § 1186a(b)(1). Termination of

conditional permanent resident status renders the alien removable.

8 U.S.C. § 1227(a)(1)(D)(i).

In order to have the conditions removed, the alien and

citizen-spouse must file a joint petition stating “that the marriage,

in sum and substance, was not entered into for the purpose of

gaining [the] alien’s entry as an immigrant.” Cabrera-Perez, 456

F.3d at 111; see also 8 U.S.C. § 1186a(c)(1)(A), (d)(1). This

petition must be filed during the ninety-day period before the

second anniversary of the alien’s admission as a conditional LPR.

8 U.S.C. § 1186a(d)(2)(A). The statute requires the alien and the

citizen-spouse to appear for an interview with CIS, but the

Attorney General may waive that requirement. See 8 U.S.C. §

1186a(c)(1)(B), (d)(3); 8 C.F.R. § 216.4(b). Upon verification that

the facts in the petition are true, “the Attorney General shall . . .

remove the conditional basis of the [alien’s status] effective as of

the second anniversary of the alien’s obtaining the status of lawful

admission for permanent residence.” 8 U.S.C. § 1186a(c)(3)(B);

see also Vasquez, 602 F.3d at 1006; Choin, 537 F.3d at 1118-19.5

If a conditional LPR fails to file a timely petition for

removal of the conditions, or fails to appear for an un-waived

interview, the Attorney General ordinarily must terminate the

alien’s conditional LPR status as of the second anniversary that

status was obtained. 8 U.S.C. § 1186a(c)(2); see also Vasquez, 602

F.3d at 1006. Section 1186a contains no provision, however,

requiring the Attorney General to terminate an alien’s conditional

status upon the commission of a criminal offense. Additionally,

the “conditions” imposed by § 1186a – aside from the marriage-

related formalities to which we have referred – neither restrict the

rights nor expand the obligations of a conditional LPR. The

Attorney General, in fact, has promulgated regulations stating that,

5

The Attorney General has never challenged Gallimore’s

marriage as fraudulent.

9

except where otherwise specified, conditional LPRs enjoy the same

rights and privileges as those LPRs whose status is not conditional.

See generally 8 C.F.R. §§ 216.1-216.6.

B.

Before its repeal by the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L. No.

104-208, 110 Stat. 3009-546, INA § 212(c) permitted certain

immigrants found deportable on the basis of a criminal offense to

apply for discretionary relief – known as “waiver” – from

deportation. See Ponnapula v. Ashcroft, 373 F.3d 480, 486 (3d

Cir. 2004). Section 212(c) stated in pertinent part: “Aliens lawfully

admitted for permanent residence who temporarily proceeded

abroad voluntarily and not under an order of deportation, and who

are returning to a lawful unrelinquished domicile of seven

consecutive years, may be admitted in the discretion of the

Attorney General . . . .” 8 U.S.C. § 1182(c) (1994). Though this

provision literally applied only to exclusion proceedings when

LPRs returned from abroad, judicial and administrative

interpretations extended its protection to deportation proceedings

as well. See INS v. St. Cyr, 533 U.S. 289, 295 (2001); Atkinson v.

Att’y Gen., 479 F.3d 222, 225-26 (3d Cir. 2007); Matter of Silva,

16 I. & N. Dec. 26, 30 (BIA 1976).

Despite IIRIRA’s repeal of § 212(c), the Supreme Court

held in St. Cyr that discretionary relief under § 212(c) “remains

available for aliens . . . whose convictions were obtained through

plea agreements and who . . . would have been eligible for § 212(c)

relief at the time of their plea under the law then in effect.” 533

U.S. at 326. It is undisputed that Gallimore satisfies the first

portion of this standard, as he pleaded guilty before IIRIRA

became effective. But to be eligible for a waiver, Gallimore must

also have been “lawfully admitted for permanent residence.” This

is the overarching issue before us.

C.

An alien who becomes an LPR through fraud has not been

“lawfully admitted” for § 212(c) purposes. Matter of T---, 6 I. &

10

N. Dec. at 137-38. This is so because “[t]he term ‘lawfully’

denotes compliance with substantive legal requirements, not mere

procedural regularity . . . .” In re Longstaff, 716 F.2d 1439, 1441

(5th Cir. 1983); see also Mejia-Orellana v. Gonzales, 502 F.3d 13,

16 (1st Cir. 2007) (“BIA precedent holds that aliens are ineligible

for [waiver] . . . where they have acquired permanent resident

status by fraud or misrepresentation, because they have not been

lawfully admitted for permanent residence.” (citing In re

Koloamatangi, 23 I. & N. Dec. 548, 551 (BIA 2003))); Biggs v.

INS, 55 F.3d 1398, 1401 (9th Cir. 1995).

Thus, an alien whose status has been adjusted to LPR – but

who is subsequently determined to have obtained that status

adjustment through fraud – has not been “lawfully admitted for

permanent residence” because the “alien is deemed, ab initio, never

to have obtained [LPR] status.” Koloamatangi, 23 I. & N. Dec. at

551. Such an alien, therefore, is ineligible for § 212(c) relief. As

set out above, the IJ in this case found that Gallimore had obtained

his LPR status by willfully misrepresenting or omitting his arrest

and conviction on multiple occasions, and therefore concluded that

he was ineligible for § 212(c) relief because his 1994 status

adjustment had not been “lawful.”

The reasoning of Matter of T--- and Koloamatangi has been

extended to situations outside of fraud and misrepresentation. Cf.

Koloamatangi, 23 I. & N. Dec. at 550 (“[T]he term ‘lawfully

admitted for permanent residence’ d[oes] not apply to aliens who

had obtained their permanent resident status by fraud, or had

otherwise not been entitled to it.” (emphasis added)). Where an

alien obtains LPR status through administrative oversight – despite

being ineligible for that status for one reason or another – several

of our sister courts of appeals have deferred to BIA decisions

concluding that the alien has not been “lawfully admitted for

permanent residence.” 6 As we have explained, the BIA affirmed

6

See Shin v. Holder, 607 F.3d 1213, 1217 (9th Cir. 2010)

(“Although the facts of . . . Koloamatangi involve[d] acts of

personal fraud or misrepresentation, [its] holding[] broadly deem[s]

all grants of LPR status that were not in substantive compliance

11

the IJ’s decision on this alternative basis. Specifically, it held that

even though Gallimore’s application for status adjustment had been

approved in 1996, his 1995 conviction rendered him legally

ineligible for it because the conviction rendered him inadmissible

at that time. Thus, reasoned the BIA, irrespective of any material

misrepresentations he may or may not have made, Gallimore’s

1996 status adjustment had not been “lawful,” thereby destroying

his eligibility for § 212(c) relief.

Gallimore does not challenge – and we are in complete

with the immigration laws to be void ab initio.”); Walker v. Holder,

589 F.3d 12, 20-21 (1st Cir. 2009) (holding that where alien’s

status was procured through fraud of third parties and without

petitioner’s knowledge or participation, “it is not determinative that

Petitioner himself intended to commit fraud in obtaining admission

to the United States for permanent residence” because he had not

been “lawfully admitted” in any event); De La Rosa v. DHS, 489

F.3d 551, 554-55 (2d Cir. 2007) (per curiam) (deferring to BIA’s

conclusion that petitioner had not been “lawfully admitted” where

she had not been present in the United States in 1982, yet had been

admitted pursuant to an amnesty program requiring such presence);

Savoury v. Att’y Gen., 449 F.3d 1307, 1313 (11th Cir. 2006) (“The

adverb ‘lawfully’ requires more than the absence of fraud. It

requires consistency with all applicable law.”); Arellano-Garcia v.

Gonzales, 429 F.3d 1183, 1187 (8th Cir. 2005) (“We conclude that

the agency’s interpretation of ‘lawful’ . . . is reasonable and applies

not only where there has been fraud in the procurement of the

adjusted status, but also to a situation where the alien was not

entitled to an adjustment but received it by a negligent mistake of

the agency.”); Monet v. INS, 791 F.2d 752, 753-54 (9th Cir. 1986)

(concluding that petitioner’s prior conviction would have rendered

him ineligible for adjustment to LPR at the time his status was

adjusted, and thus that he had not been “lawfully admitted” to the

United States); In re Longstaff, 716 F.2d at 1441 (“[A] narrow

reading of the term ‘lawfully admitted’ distorts its meaning.

Admission is not lawful if it is regular only in form. The term

‘lawfully’ denotes compliance with substantive legal requirements,

not mere procedural regularity . . . .”).

12

agreement with – the fundamental reasoning of the fraud line of

cases (Koloamatangi and Matter of T---) and the application of that

reasoning to what we shall refer to as “non-fraud cases.” The

agency’s determination that one does not “lawfully” obtain LPR

status through fraud is certainly a reasonable interpretation of §

212(c) and that statutory analysis is entitled to deference. Further,

we discern no principled distinction between (1) finding a status

adjustment not “lawful” because the applicant procured it through

fraud; and (2) finding a status adjustment not “lawful” because the

applicant was not legally entitled to it for any other reason.

Accordingly, we defer to the BIA’s interpretation of §

212(c) that “an alien whose status has been adjusted to lawful

permanent resident but who is subsequently determined in an

immigration proceeding to have originally been ineligible for that

status has not been ‘lawfully admitted for permanent residence.’”

De La Rosa v. DHS, 489 F.3d 551, 554 (2d Cir. 2007) (per curiam)

(citing Koloamatangi, 23 I. & N. Dec. at 551). In doing so, we join

“the decisions of our sister circuits, which have uniformly adopted

the same definition of the phrase ‘lawfully admitted for permanent

residence’ either by finding that the phrase is unambiguous or by

granting deference to the BIA’s interpretation.” Id. (citations

omitted).

That is not, however, the end of the matter. Though

Gallimore does not attack the reasoning of the non-fraud cases, he

challenges their applicability here. His argument is one of timing.

Cf. id. at 555 (“[T]o be ‘lawfully admitted for permanent

residence’ an alien must have complied with the substantive legal

requirements in place at the time she was admitted for permanent

residence.” (emphasis added)). Factually, this case is unlike any

other we have cited, because here there are two points in time

potentially relevant to whether and when Gallimore was “lawfully

admitted for permanent residence.” These two dates, moreover,

straddle the date of the potentially disqualifying conviction. Upon

marrying a United States citizen in 1994, Gallimore “obtain[ed] the

status of an alien lawfully admitted for permanent residence,” yet

that status by law was “considered . . . to [be] . . . on a conditional

basis” until the conditions were removed in 1996. 8 U.S.C. §

1186a(a)(1). In the interim, in 1995, Gallimore was convicted on

13

the drug charges.

The question, then, is in what year was Gallimore’s status

adjusted (properly or improperly) to that of “lawfully admitted for

permanent residence”? Was it in 1994, when he first was admitted

as a conditional permanent resident? Or was it in 1996, when the

conditions were removed? If 1994 is the relevant date, then

Gallimore would not be ineligible for § 212(c) relief for the reasons

stated by the BIA. This would be so because he had not yet been

convicted in 1994 and, as of that date, he otherwise appeared to be

in compliance with all relevant legal requirements necessary to

obtain permanent resident status.7 Conversely, if 1996 is the

relevant date, then the BIA’s application of the non-fraud cases

will carry the day.

D.

The INA defines the phrase “lawfully admitted for

permanent residence” as 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.” 8 U.S.C. § 1101(a)(20). 8 In support

7

The obvious caveat to this is that even if 1994 is

determined to be the relevant date, that would still leave for

resolution the IJ’s analysis regarding Gallimore’s alleged

misrepresentations. We take no position on the IJ’s analysis at this

time.

8

A regulation promulgated pursuant to this provision

contains the identical definition, but adds that “[s]uch status

terminates upon entry of a final administrative order of exclusion,

deportation, or removal.” 8 C.F.R. § 1.1(p). Seizing on the

regulation’s additional language, Gallimore argues that his status

could only have been changed by a final order of removal.

Gallimore Br. at 18. The BIA rejected this very argument in

Koloamatangi, explaining that the extra verbiage was intended to

clarify only that “an alien’s permanent resident status, which has

been lawfully obtained, terminated with the entry of a final

administrative order of deportation,” but that the lawfulness of the

14

of the BIA’s disposition, the Attorney General argues that

Gallimore cannot be said to have been accorded the privilege of

residing “permanently” in the United States in 1994 because his

status was then subject to “conditions.”

Before addressing the Attorney General’s particular

argument in support of the BIA’s opinion, we focus on the opinion

itself. The BIA applied the non-fraud cases sua sponte, and in

doing so did not explain why a conditional permanent resident has

not met – at the time conditional status initially is obtained – §

1101(a)(20)’s definition of “lawfully admitted for permanent

residence.” In fact, what little explanation the BIA did provide

strongly suggests that it did not consider the issue at all. Instead,

it appears far more likely that the BIA simply overlooked the fact

that Gallimore’s status initially had been adjusted pursuant to §

1186a in 1994. Consequently, we believe the BIA failed to

recognize the relevance of that date, and that that failure tainted its

entire legal analysis.

The BIA twice noted – without elaboration and in contrast

to the IJ’s explicit recognition that Gallimore’s “status was adjusted

to that of lawful permanent resident on July 6, 1994” – that his

status was adjusted in 1996. More importantly, the BIA did not so

much as mention § 1186a. We would expect that if the BIA was

status did not turn on when the alien physically departed the

country. 23 I. & N. Dec. at 550 (emphasis added). The BIA

explained that “[t]here is no indication . . . the final sentence [in the

regulation] was intended to undermine the long-standing decisions

holding that an alien was not ‘lawfully’ admitted for permanent

resident status if, at the time such status was accorded, he or she

was not entitled to it.” Id. Accordingly, “the issue of whether an

LPR retains her status until the conclusion of removal proceedings

is distinct from whether she was ‘lawfully admitted’ in the first

place so that she may seek relief from removal . . . .” Shin, __ F.3d

at __, 2010 U.S. App. LEXIS 11933, at *10; accord Savoury, 449

F.3d at 1314. While Gallimore’s argument is off the mark, the

question of when his status was adjusted to “lawfully admitted for

permanent residence” nonetheless remains.

15

interpreting whether an alien admitted under § 1186a is

categorically ineligible for a waiver during the two-year conditional

period, the agency would have at least cited § 1186a. Instead, the

BIA cited only 8 U.S.C. § 1255(a)(2) – requiring that an alien be

admissible at the time of obtaining LPR status – and concluded that

Gallimore could not satisfy this criterion because his 1995

conviction rendered him inadmissible in 1996. But if Gallimore

had already been admitted in 1994, a determination that he would

otherwise have been inadmissible in 1996 would have no practical

significance. By concluding that Gallimore was inadmissible in

1996 without acknowledging that he had been admitted

conditionally in 1994 (when he ostensibly was admissible), the BIA

appears to have mistakenly assumed as fact that 1996 was the only

year relevant to Gallimore’s eligibility for § 212(c) relief.

The Attorney General proclaims baldly that the BIA’s

“interpretation that [Gallimore] would not have been ‘lawfully

admitted for permanent residence’ until 1996, when his conditions

were removed[,]” is entitled to Chevron deference. Att’y Gen. Br.

at 22. But if the BIA simply overlooked the fact that Gallimore’s

status was adjusted pursuant to § 1186a in 1994 – as we strongly

suspect is the case – we are not entitled to sustain its decision on

grounds the Attorney General articulates ex post. See Ro v. INS,

670 F.2d 114, 116 (9th Cir. 1982) (“A BIA decision can be

affirmed only on the basis articulated in the decision.”); accord

Moret v. Karn, 746 F.2d 989, 992 (3d Cir. 1984) (“[A] court must

evaluate the propriety of an agency action solely on the grounds

invoked by the agency in its initial determination. If . . . those

grounds are inadequate or improper, the agency action must be set

aside.”). Accordingly, our belief that the BIA’s analysis proceeded

on a critically inaccurate factual assumption compels us to grant

Gallimore’s petition and remand the case for further consideration

by the BIA.

We cannot conclude with certainty, however, that the BIA

did not consider the interplay between §§ 1186a and 212(c). We

think it appropriate, therefore, to address the Attorney General’s

argument – that a conditional LPR is ineligible for § 212(c) relief

so long as his status remains “conditional,” because he has not yet

achieved the privilege of residing “permanently” in the United

16

States and thus has not been “lawfully admitted for permanent

residence.”

As an initial matter, if the BIA did indeed interpret §§ 1186a

and 212(c) in the manner that the Attorney General now suggests,

it did so sub silentio, precluding us from engaging in meaningful

review. “While we give deference to the decisions of the BIA . .

. we cannot give meaningful review to a decision in which the BIA

does not explain how it came to its conclusion.” Awolesi v.

Ashcroft, 341 F.3d 227, 228-29 (3d Cir. 2003).9 Here, the BIA’s

failure to explain its interpretation (if any) handicaps entirely our

ability to review it for reasonableness.

To the extent one can intuit from the BIA’s opinion an

interpretation that conditional permanent residents are ineligible for

§ 212(c) relief unless and until the conditions have been removed,

that conclusion runs headlong into the plain language of § 1186a

and its accompanying regulations. This language undermines – if

9

See also Awolesi, 341 F.3d at 232 (“In order for us to be

able to give meaningful review to the BIA’s decision, we must

have some insight into its reasoning.”); Dia v. Ashcroft, 353 F.3d

228, 268 (3d Cir. 2003) (en banc) (Stapleton, J., dissenting)

(“[J]udicial review necessarily requires something to review and,

if the agency provides only its result without an explanation of the

underlying fact finding and analysis, a court is unable to provide

judicial review.”); Abdulai, 239 F.3d at 555 (“[T]he availability of

judicial review . . . necessarily contemplates something for us to

review . . . . Because the BIA’s failure of explanation makes it

impossible for us to review its rationale, we grant [the] petition for

review, vacate the [BIA]’s order, and remand the matter . . . .”

(emphasis in original)); Sotto v. INS, 748 F.2d 832, 837 (3d Cir.

1984); cf. SEC v. Chenery Corp., 332 U.S. 194, 196-97 (1947) (“It

will not do for a court to be compelled to guess at the theory

underlying the agency’s action; nor can a court be expected to

chisel that which must be precise from what the agency has left

vague and indecisive. . . . We must know what a decision means

before the duty becomes ours to say whether it is right or wrong.”

(quotation marks omitted)).

17

it does not foreclose entirely – the Attorney General’s claim that

Gallimore had not been “lawfully accorded the privilege of residing

permanently in the United States” in 1994, before his 1995

conviction.

Section 1186a, as we have noted, provides that a conditional

permanent resident is one who has “obtain[ed] the status of an alien

lawfully admitted for permanent residence.” 8 U.S.C. § 1186a

(emphasis added). It is true that such status is deemed

“conditional,” perhaps suggesting that a conditional LPR is not

literally entitled to reside “permanently” in the United States so

long as the marriage-related conditions remain in place. Cf. The

American Heritage Dictionary of the English Language, (4th ed.

2 0 0 4 ) , a v a il a b le a t h ttp ://d ic tio n a ry.re f e re n c e .c o m /

browse/permanent (last visited July 12, 2010) (defining

“permanent” in part as “[n]ot expected to change in status,

condition, or place”).

But other language in § 1186a undercuts decisively a literal

interpretation of the word “permanently” as applied to the

residence status of conditional LPRs. Specifically, the provision

governing removal of an alien’s conditions provides that the

conditions are to be removed “effective as of the second

anniversary of the alien’s obtaining the status of lawful admission

for permanent residence.” 8 U.S.C. § 1186a(c)(3)(B) (emphasis

added). If the conditions are to be removed on the second

anniversary of obtaining lawful permanent resident status, then by

necessity that “permanent” status is obtained on the date of the

initial adjustment. Section 1186a(e), concerning conditional

permanent residents’ eligibility for citizenship, corroborates this

point:

For purposes of [naturalization], 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.

18

8 U.S.C. § 1186a(e) (emphasis added). These statutory provisions

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.

Equally plain is 8 C.F.R. § 216.1, which provides in

pertinent part:

A conditional permanent resident is an alien who has

been lawfully admitted for permanent residence

within the meaning of [8 U.S.C. § 1101(a)(20)],

except that a conditional permanent resident is also

subject to the conditions and responsibilities set forth

in [§ 1186a] . . . . Unless otherwise specified, the

rights, privileges, responsibilities and duties which

apply to all other lawful permanent residents apply

equally to conditional permanent residents, including

but not limited to the right to apply for naturalization

(if otherwise eligible), the right to file petitions on

behalf of qualifying relatives, the privilege of

residing permanently in the United States as an

immigrant in accordance with the immigration laws,

such status not having changed; the duty to register

with the Selective Service System, when required;

and the responsibility for complying with all laws

and regulations of the United States. All references

within this chapter to lawful permanent residents

apply equally to conditional permanent residents,

unless otherwise specified.

8 C.F.R. § 216.1 (emphases added). The regulation explains, in

contrast to the Attorney General’s literal argument, that one of the

privileges to which a conditional LPR is entitled is the right to

reside “permanently” in the United States. The regulation further

demonstrates that conditional permanent residents are, by

definition, “lawfully admitted for permanent residence,” thereby

placing conditional LPRs in the same position as non-conditional

19

LPRs, except as the INA provides otherwise.10

The INA thus equates conditional LPRs with “full-fledged”

LPRs, except to the extent – but only to the extent – that § 1186a

prescribes additional obligations. And so long as a conditional

LPR complies with those obligations, they do not affect the alien’s

“privilege of residing permanently in the United States as an

immigrant in accordance with the immigration laws.” 8 C.F.R. §

216.1. Having considered § 1186a and the regulations promulgated

thereunder, we can perceive of no reason why conditional

permanent residents should not be deemed “lawfully admitted for

permanent residence” as of the date their status is initially adjusted.

The statutory and regulatory scheme appears to grant conditional

permanent residents the privilege of residing “permanently” in the

United States and – upon compliance with § 1186a’s marriage-

related requirements – the right to retain that privilege.11

10

Other regulations dealing with the termination or

revocation of conditional status similarly provide that when an

alien’s conditional LPR status ends, he loses permanent resident

status. See 8 C.F.R. § 216.4(b)(3) (providing that if a conditional

LPR fails to appear for an unwaived interview on a petition to

remove conditions, “the alien’s permanent residence status will be

automatically terminated as of the second anniversary of the date

on which the alien obtained permanent residence” (emphasis

added)); 8 C.F.R. § 216.4(d)(2) (providing that if the Attorney

General denies a conditional LPR’s petition to remove conditions,

the “alien’s lawful permanent resident status shall be terminated”).

But one would expect that before permanent resident status can be

terminated, a conditional LPR must have it in the first place.

11

We are aware of only two other sections in the INA that

cross-reference § 1186a: (1) 8 U.S.C. § 1228(b) (subjecting

conditional LPRs to expedited removal proceedings); and (2) 8

U.S.C. § 1255(d) (prohibiting the Attorney General from granting

to conditional LPRs unconditional status under the general LPR

program); see generally Kalal v. Gonzales, 402 F.3d 948, 951 (9th

Cir. 2005). We leave it to the BIA to address on remand, if

necessary, the effect of these provisions on Gallimore’s eligibility

for § 212(c) relief.

20

While at present we are aware of no authority suggesting

that a conditional permanent resident is categorically ineligible for

§ 212(c) relief during the two-year conditional period, we believe

that prudence counsels caution. Without explicit BIA input on the

issue – and because the probable factual oversight that we have

discussed requires us to remand in any event – it is appropriate to

allow the BIA to address the Attorney General’s argument in the

first instance, should it find the need to do so. “A court of appeals

is generally not empowered to conduct a de novo inquiry into the

matter being reviewed and to reach its own conclusions based on

such an inquiry.” INS v. Ventura, 537 U.S. 12, 16 (2002) (per

curiam) (citation and internal quotation marks omitted). “Rather,

the proper course, except in rare circumstances, is to remand to the

agency for additional investigation or explanation.” Id.; accord

Negusie v. Holder, __ U.S. __, __, 129 S. Ct. 1159, 1164 (2009)

(“When the BIA has not spoken on ‘a matter that statutes place

primarily in agency hands,’ our ordinary rule is to remand to ‘give

the BIA the opportunity to address the matter in the first instance

in light of its own experience.’” (quoting Ventura, 537 U.S. at

16-17)); Gonzales v. Thomas, 547 U.S. 183, 183-87 (2006) (per

curiam).

We follow that course here, and do not at this time rule out

the interpretation the Attorney General espouses. The BIA is better

positioned to undertake a holistic review of all statutory and

regulatory provisions potentially bearing on a conditional LPR’s

eligibility for § 212(c) relief. Of course, the BIA may wish instead

simply to correct the factual oversight that we believe led it astray.

If such a correction obviates the need to address the Attorney

General’s argument, the BIA should address the IJ’s fraud analysis

in the first instance. See Pareja v. Att’y Gen., __ F.3d __, __, No.

08-4598, 2010 U.S. App. LEXIS 15656, at *42-43 (3d Cir. July 29,

2010) (granting a petition for review and remanding to allow the

BIA to either clarify its decision or, upon recognition of error,

analyze the claim anew using the correct principles, where the

“meaning of the BIA’s decision” was “uncertain[]”). In either case,

however, the BIA must – as always – explain its reasoning

sufficiently to enable proper appellate review.

21

III.

Gallimore also argues that his removal is now barred by the

five-year statute of limitations established in 8 U.S.C. § 1256(a).

He did not raise this claim to either the IJ or the BIA. It is

therefore unexhausted, leaving us without jurisdiction to review it.

See Bin Lin v. Att’y Gen., 543 F.3d 114, 119 (3d Cir. 2008).

IV.

For the foregoing reasons, we will grant Gallimore’s

petition for review and remand the case to the BIA for further

proceedings consistent with this opinion.

22