Martinez v. Attorney General

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 11-2258

________________

ERASMO ANIBAL MARTINEZ,

Petitioner

v.

ATTORNEY GENERAL OF THE

UNITED STATES,

Respondent

________________

On Petition for Review of a Final Order

of the Board of Immigration Appeals

Immigration Judge: Honorable Margaret Reichenberg

(No. A042-439-642)

_______________

Argued April 11, 2012

Before: MCKEE, Chief Judge, HARDIMAN, Circuit Judge

and JONES, II, * District Judge

(Opinion filed: September 6, 2012)

*

Honorable C. Darnell Jones, II, District Judge for the United

States District Court for the Eastern District of Pennsylvania,

sitting by designation.

1

Raquiba Huq

Claudine Langrin

Timothy Block

Shifra Rubin

Melville D. Miller, Jr.

Whitney Elliott, Esq. [ARGUED]

Legal Services of New Jersey

100 Metroplex Drive, Suite 402

P.O. Box 1357

Edison, New Jersey 08818-1357

Counsel for Petitioner

Tony West, Esq.

David V. Bernal, Esq.

Stuart S. Nickum. Esq. [ARGUED]

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

____________

OPINION OF THE COURT

____________

JONES, II, District Judge.

Section 212(h) of the Immigration and Nationality Act

(“INA”) expressly bars from status adjustment a non-citizen

who has “previously been admitted to the United States as an

alien lawfully admitted for permanent residence” but later is

convicted of an aggravated felony. 8 U.S.C. § 82(h)(1)(C)(2).

This appeal presents a question of first impression in this

Circuit: whether someone who was accorded the designation

of “lawfully admitted for permanent residence” status upon

physical entry into the United States, but who in fact did not

substantively qualify for such designated status, is still barred

from Section 212(h) relief. We determine that “admission” as

2

an lawful permanent resident (“LPR”) in Section 212(h)

refers to a procedurally regular entry, not a substantively

compliant one. As we conclude here that the prohibition

holds, we will deny the petition for review.

I. Background

Petitioner Erasmo Anibal Martinez, a native of

Nicaragua, entered the United States without inspection in

1985. In October 1989, he married a United States citizen

(who bore his daughter later that year), and began the process

of adjusting his status to LPR. On September 15, 1990,

Martinez was arrested and later charged in a four-count

indictment before the Superior Court of New Jersey. On

December 7, 1990, he pleaded guilty to sexual assault under

N.J. Stat. § 2C:14-2b, admitting that he had touched the

vaginal area of his then-eight-year-old step-daughter.

In early 1991, after his plea but prior to his sentencing,

Martinez travelled to Nicaragua to complete the immigrant

visa application process. The United States consulate in

Nicaragua approved his application on March 5, 1991.

Martinez was admitted to the United States as a permanent

resident the following day. On March 22, 1991, two weeks

after he obtained permanent resident status, he was sentenced

to four years in prison. Martinez was released on parole on

November 9, 1992.

The Department of Homeland Security (“DHS”)

initiated removal proceedings against Martinez in August

2009, and Martinez ultimately conceded that he was

removable for having been convicted of an aggravated felony

for sexual abuse of a minor. See 8 U.S.C. §§

1227(a)(2)(A)(iii) (setting forth grounds for removability),

1101(a)(43)(A) (defining aggravated felony). Martinez

argued, however, that he was eligible for adjustment of status

under former INA Section 212(c), which waived the bar

against status adjustment for convicted aggravated felons in

the case of certain LPRs. 1 DHS responded that Martinez was

1

Waiver under former Section 212(c) required that an alien

have (1) at least seven years unrelinquished residence in the

United States; (2) at least five years as an LPR; and (3) not

3

not eligible for a Section 212(c) waiver because he had not in

fact been “lawfully admitted for permanent residence” (an

eligibility requirement under Section 212(c)): he had failed to

disclose his prior arrest and guilty plea on his original

application for permanent resident status. The Immigration

Judge (“IJ”) agreed.

In response, Martinez sought instead to readjust his

status under INA Section 212(h)(1)(A), which allows for

adjustment of alien status by the spouse, parent, son or

daughter of a United States citizen where denial of such

adjustment would constitute extreme hardship on either the

alien or the citizen. Section 212(h), however, expressly bars

from relief a non-citizen who has “previously been admitted

to the United States as an alien lawfully admitted for

permanent residence” but “since the date of admission . . . has

been convicted of an aggravated felony . . . .” 8 U.S.C. §

1182(h)(1)(C)(2). With some creativity, Martinez argued that

this bar could not apply to him because he was actually

inadmissible at the time he was granted LPR status due to his

failure to disclose his prior arrest and guilty plea at the time

he entered the United States as an LPR. 2

served more than five years in prison after final conviction for

an offense.

2

As the Board of Immigration Appeals points out, Martinez’s

conviction did not render him deportable under Section

237(a)(2)(A)(i) of the INA, 8 U.S.C. § 1227(a)(2)(A)(i),

because the offense resulting in the conviction was committed

before, rather than after, Martinez began adjusting his status

in the United States. Appendix for Petitioner (“Pet. App.”) 7a

(citing Matter of Alyazji, 25 I & N Dec. 397 (BIA 2011)). At

the very least, however, it was Martinez’s failure to disclose

his arrest and guilty plea that rendered him inadmissible at the

time he entered, because of “‘fraud or willfully

misrepresenting a material fact.’” Hing Sum v. Holder, 602

F.3d 1092, 1094 n.1 (9th Cir. 2010) (record did not establish

aggravated felony conviction but did establish arrest for said

felony) (quoting 8 U.S.C. § 1182(a)(6)(C)(i)); see Mwongera

v. I.N.S., 187 F.3d 323, 330 (3d Cir. 1999) (“knowledge of the

falsity of the representation will suffice” to establish

inadmissibility). As the Board notes, Martinez conceded

before the IJ that his conviction involved a crime of moral

4

The IJ rejected Martinez’s argument. While

substantive satisfaction of LPR status was an underlying

requirement for Section 212(c) waiver, the IJ found that the

absence of such satisfaction did not equate to waiver of the

Section 212(h) bar. Specifically, the IJ held that the Board of

Immigration Appeals’ (“BIA”) decision in In re Ayala-

Arevalo, 22 I & N Dec. 398 (BIA 1998), controlled and

Martinez was statutorily ineligible for Section 212(h) relief.

Martinez timely appealed to the BIA, arguing that he

was eligible for Section 212(c) relief because the IJ erred in

concluding that Martinez had never been “lawfully admitted

for permanent residence.” In the alternative, Martinez

contended that if the BIA determined that he had never been

“lawfully admitted for permanent residence,” then it should

find him eligible for a Section 212(h) waiver, thus overruling

Ayala.

The BIA remained similarly unpersuaded. According

to the Board, Martinez was ineligible for 212(c) relief

because he had “never been lawfully admitted for permanent

residence,” but he was also ineligible for 212(h) relief:

“although [Martinez] has never been lawfully admitted for

permanent residence” in a substantive manner, he had

“previously been ‘admitted,’ even if that admission has

subsequently been ‘determined to have been . . . in violation

of law.’” Pet. App. 8a (quoting Ayala at 401 (ellipsis in the

original)). The Board concluded that Ayala compelled a

finding that Martinez’s aggravated felony conviction rendered

him ineligible for a waiver of inadmissibility under Section

212(h), and the BIA declined to overturn Ayala.

Martinez then timely filed a petition for review of the

Section 212(h) waiver question only, and later moved for a

turpitude; the IJ determined that such acknowledgement

rendered him inadmissible pursuant to 8 U.S.C. §

1182(a)(2)(A)(i)(I) (any alien “convicted of, or who admits

having committed . . . a crime involving moral turpitude . . . is

inadmissible.”). Pet. App. 7a & n.2.

5

stay of removal, which was granted. 3 The Newark

Immigration Court had jurisdiction under 8 C.F.R. §

1003.14(a) and the BIA had jurisdiction under 8 C.F.R. §§

1003.1(b)(3). As Martinez seeks review of a final order of

removal, this Court has jurisdiction under 8 U.S.C. § 1252(a).

II. Standard of Review

When, as here, the BIA affirms an IJ’s decision and

adds analysis of its own, we review both the IJ’s and the

BIA’s decisions. Dia v. Ashcroft, 353 F.3d 228, 243 (3d Cir.

2003) (en banc); Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d

Cir. 2001). We review de novo questions of law, such as the

proper construction of Section 212(h). Fadiga v. Att’y Gen.,

488 F.3d 142, 153 (3d Cir. 2007). Using all “traditional tools

of statutory construction,” we must determine “whether

Congress has directly spoken to the precise question at issue.”

Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467

U.S. 837, 842, 843 n.9 (1984). “If Congress has done so,

[our] inquiry is at an end; [we] ‘must give effect to the

unambiguously expressed intent of Congress.’” FDA v.

Brown & Williamson Tobacco Corp., 529 U.S. 120, 132

(2000) (quoting Chevron, 467 U.S. at 843). If, however, the

statute is “silent or ambiguous with respect to the specific

issue,” we must assess “whether the agency’s answer is based

on a permissible construction.” Chevron, 467 U.S. at 843. If

so, then we must defer to that construction. Id. at 845.

Unsurprisingly, Respondent urges us to apply Chevron

deference here. Martinez, however, argues on two grounds

that Chevron does not apply. First, Martinez claims that no

statutory ambiguity exists, such that Congress clearly

intended for the Section 212(h) waiver to apply to an

individual like Martinez. Second, Martinez claims that even

if such ambiguity does exist, it is for this Court to resolve

without deference to the BIA’s statutory construction, which

would be due only if the BIA itself had interpreted Section

212(h). According to Martinez, in Ayala the BIA explicitly

3

While the BIA addressed Martinez’s ineligibility for several

different waivers of inadmissibility for which Martinez had

applied, here Martinez appeals only the Section 212(h) waiver

issue.

6

found that Section 212(h) “clearly precluded” waiver

applicants such as himself; thus the BIA did not reach its own

construction of the statute, and therefore this Court should not

defer to the BIA’s application of Section 212(h).

Martinez cites exclusively to caselaw from the D.C.

Circuit and the Seventh Circuit in support of his argument

against Chevron deference. See Reply Brief for Petitioner

(“Pet. Reply”) at 7-8 (citing Arizona v. Thompson, 281 F.3d

248, 254 (D.C. Cir. 2002); Peter Pan Bus Lines, Inc. v. Fed.

Motor Carrier Safety Admin., 471 F.3d 1350, 1354 (D.C. Cir.

2006); Escobar Barraza v. Mukasey, 519 F.3d 388, 391 (7th

Cir. 2008); U.S. Postal Service v. Postal Regulatory Comm’n,

640 F.3d 1263, 1268 (D.C. Cir. 2011)). The Third Circuit has

not yet addressed the question of whether such deference is

“only appropriate when the agency has exercised its own

judgment, not when it believes that [its] interpretation is

compelled by Congress.” Thompson, 281 F.3d at 254

(internal quotation marks and citations omitted) (emphasis in

original). 4 For the reasons set forth below, however, we find

Section 212(h)’s statutory language free of ambiguity—

4

While not necessarily reaching the same ultimate

conclusions, the Fourth, Fifth, Ninth and Eleventh Circuits

have declined to accord explicit Chevron deference under

similar circumstances. See Bracamontes v. Holder, 675 F.3d

380, 386 (4th Cir. 2012) (“[T]he BIA’s interpretation of

Section 212(h) in the instant case fails the first prong of the

Chevron test…the statutory bar to a waiver of inadmissibility

is not ambiguous with respect to whom it applies.”); Martinez

v. Mukasey, 519 F.3d 532, 544 (5th Cir. 2008) (“[F]or the §

212(h) bar to apply: when the alien is granted permission,

after inspection, to enter the United States, he must then be

admitted as [a lawful permanent resident]. Accordingly, we

find no basis for the statutory language's being ambiguous.”);

Hing Sum, 602 F.3d at 1099 (“We need not resort to

legislative history because the statute is not ambiguous.”);

Lanier v. U.S. Att’y Gen., 631 F.3d 1363, 1367 (11th Cir.

2011); (Based on [Section 212(h)’s] unambiguous text, we

find that the statutory bar to relief does not apply to those

persons who . . . adjusted to lawful permanent resident status

while already living in the United States.”).

7

though not in the manner Martinez champions—and thus we

need not accord Chevron deference.

III. Analysis

A. Statutory Language

Section 212(h) provides one of the few avenues of

relief for non-citizens who would otherwise be eligible to

adjust their immigration status but for certain grounds of

inadmissibility, such as moral turpitude. In 1996, however, as

part of a larger immigration reform initiative, Congress

amended the statute to render fewer LPRs eligible for the

Section 212(h) waiver on aggravated felonies. See Illegal

Immigration Reform and Immigrant Responsibility Act of

1996 (“IIRIRA”), Pub. L. No. 104-208, div. C, §348, 110

Stat. 3009 (amending 8 U.S.C. §1182(h)). The statute

currently provides that “[n]o waiver shall be granted under

this subsection in the case of an alien who has previously

been admitted to the United States as an alien lawfully

admitted for permanent residence if . . . since the date of such

admission the alien has been convicted of an aggravated

felony . . . .” 8 U.S.C. § 1182(h)(1)(C)(2). 5

5

Prior to the 1996 amendment, the INA assessed status on the

basis of “entry” as opposed to “admission.” See 8 U.S.C. §

1101(a)(13) (1994) (defining “entry” as “any coming of an

alien into the United States, from a foreign port or place or

from an outlying possession, whether voluntarily or

otherwise”). Non-citizens who had “entered” the United

States were processed for deportation; those who had not

“entered” were sent into exclusion proceedings. Charles

Gordon, Stanley Mailman & Stephen Yale-Loehr, 1-1

IMMIGRATION LAW AND PROCEDURE § 1.03(2)(b) (2010). As

a result, “non-citizens who had entered without inspection

could take advantage of the greater procedural and

substantive rights afforded in deportation proceedings,” while

non-citizens who actually presented themselves to authorities

for inspection were restrained by “more summary exclusion

proceedings.” Hing Sum, 602 F. 3d at 1100. To remedy this

unintended and undesirable consequence, the IIRIRA

substituted “admission” for “entry,” and replaced deportation

and exclusion proceedings with the more general “removal”

proceeding.

8

Thus, as our sister court in the Ninth Circuit has

explained so succinctly, Section 212(h) waivers are “available

to non-LPRs convicted of aggravated felonies, or non-citizens

who were convicted of an aggravated felony prior to their

admission as LPRs, but they are unavailable to non-citizens

who were convicted of an aggravated felony after their

admission as LPRs.” Hing Sum, 602 F.3d at 1095 (emphasis

in original) (citing In re Michel, 21 I & N Dec. 1101, 1104

(BIA 1998) (en banc) and United States v. Arrieta, 224 F.3d

1076, 1080-81 & n.2 (9th Cir. 2000)). As outlined above,

Martinez’s appeal rests on whether, despite his arrest and

guilty plea prior to adjusting to LPR status, he is eligible to

seek Section 212(h) relief. As the BIA opinion notes, the IJ

found that Martinez was “previously admitted . . . as an alien

lawfully admitted for permanent residence” within the

meaning of Section 212(h), that he was subsequently

convicted for an aggravated felony, and that he was therefore

barred from pursuing Section 212(h) relief. Pet. App. 116a. 6

Martinez contends, however, that precisely because he

6

Since the INA’s 1996 amendment, the term “conviction”

means:

with respect to an alien, a formal judgment of guilt of

the alien entered by a court or, if adjudication of guilt

has been withheld, where (i) a judge or jury has found

the alien guilty or the alien has entered a plea of guilty

or nolo contendere or has admitted sufficient facts to

warrant a finding of guilt, and (ii) the judge has

ordered some form of punishment, penalty or restraint

on the alien’s liberty to be imposed.

8 U.S.C. § 1101(a)(48)(A) (emphasis added). Martinez

pleaded guilty on December 7, 1990 but was not sentenced

until March 22, 1991—two weeks after his relevant entry into

the United States on March 6, 1991. Accordingly, as the BIA

found, he was not “convicted” of an aggravated felony until

after his admission. See Pet. App. 6a (citing Perez v. Elwood,

294 F.3d 552, 562 (3d Cir. 2002) (alien’s “conviction”

occurred not when he was tried and found guilty by jury but

on date sentence was imposed))). In any event, Martinez

does not contest that he was “convicted” subsequent to his

March 1991 admission, despite tendering his guilty plea prior

to his admission, and thus waives any potential argument on

that ground.

9

attained LPR status through fraud or misrepresentation, he

was never lawfully admitted and thus Section 212(h) cannot

bar his status adjustment now.

B. Application

The INA defines “admitted” as the “lawful entry of the

alien into the United States after inspection and

authorization by an immigration officer,” 8 U.S.C. §

1101(a)(13)(A)—in other words, a procedurally

regular admission into the United States, not

necessarily a substantively lawful one. The term

“lawfully admitted for permanent residence,” in turn,

is defined 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).

Thus, an alien permitted to enter the United States by

an immigration officer has been “admitted” even if he did not

meet the substantive legal requirements for admission at that

time, although he was not “lawfully admitted for permanent

residence” under the INA unless he were substantively in

compliance with those admission requirements. See Emokah

v. Mukasey, 523 F.3d 110, 118 (2d Cir. 2008) (admission

obtained by using fraudulent visa still constitutes

“admission”); Borrego v. Mukasey, 539 F.3d 689, 691-93

(same); compare to Matter of Koloamatangi, 23 I & N Dec.

548, 551-52 (BIA 2003) (LPR who obtained status by

fraudulent marriage to United States citizen was not “lawfully

admitted”).

The Third Circuit has previously deferred to the BIA’s

interpretation 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,’” and that such individuals are

therefore ineligible for waivers of inadmissibility. Gallimore

v. Att’y Gen., 619 F.3d 216, 224-25 (3d Cir. 2010). However,

Gallimore concerned interpretation of former Section 212(c)

of the INA. Like Section 212(h), Section 212(c) employed

10

the phrase “lawful permanent resident,” but without the

crucial modifying language of “previously been admitted . . .

as.” See De La Rosa v. DHS, 489 F.3d 551, 554-55 (2d Cir.

2007); Savoury v. U.S. Att’y Gen., 449 F.3d 1307, 1317 (11th

Cir. 2006); Arellano-Garcia v. Gonzales, 429 F.3d 1183,

1187 (8th Cir. 2005); Monet v. INS, 791 F.2d 752, 753-55

(9th Cir. 1986); Matter of Longstaff, 716 F.2d 1439, 1441-42

(5th Cir. 1983). Along the same lines, other circuits have

isolated Section 212(c)’s “lawfully admitted for permanent

residence” from the preceding language “previously been

admitted,” but those cases did not involve interpreting the

fully expanded modifier: “previously been admitted…as”

(emphasis added). See Bracamontes, 675 F.3d at 388; Lanier

v. Att’y Gen., 631 F.3d at 1366; Martinez, 519 F.3d at 546. In

other words, the Fourth, Fifth and Eleventh Circuits focused

on the word “lawfully” in defining “admission.” We, on the

other hand, agree with the Ninth Circuit that the controlling

phrase here is not “lawfully admitted for permanent

residence,” but rather the preceding phrase, “previously been

admitted to the United States . . . as.” Hing Sum, 602 F.3d

1092, 1097 (distinguishing Martinez). 7

Only one federal appellate court has confronted

precisely the same issue that Martinez now raises. In Hing

Sum, the petitioner was arrested and allegedly convicted for a

state law violation three years before being admitted to the

United States as an LPR. Ten years after his admission, he

was convicted on federal counterfeiting conspiracy charges,

and the government commenced removal proceedings based

on this latter conviction. Like Martinez, Sum sought a waiver

under Section 212(h), “arguing that he was not subject to the

bar on § 212(h) relief because he was actually inadmissible at

the time he obtained LPR status either because of his 1987

conviction or because of his failure to disclose that conviction

when he entered as an LPR in 1990.” Id. at 1094 (footnote

omitted).

7

Bracamontes, Lanier, and Martinez are further

distinguishable from the instant case in that the petitioners in

those cases were not granted LPR status until they were

already physically present in the United States. See

Bracamontes, 675 F.3d at 382; Lanier, 631 F.3d at 1365;

Martinez, 519 F.3d at 536.

11

Hing Sum, in turn, cites Ayala with approval. 8 In

Ayala, the BIA rejected the petitioner’s argument—identical

to Martinez’s position here—that the waiver bar did not apply

to him:

While the language of section 212(h)

distinguishes those who have been previously

admitted for permanent residence from those

who have not . . . , the statute does not, either

expressly or by implication, distinguish those

whose admission was lawful and those were

who were previously admitted for lawful

permanent residence but are subsequently

determined to have been admitted in violation

of the law. To read such a distinction into the

statute would be arbitrary and capricious.

Ayala, 22 I & N at 401. Indeed, to find otherwise would be to

focus on the statutory language of “lawfully admitted” to the

complete exclusion of “previously been admitted

. . . as.” Id. The Hing Sum court noted that “Ayala’s criminal

activity at the time of admission did not alter ‘the historical

fact that, when he entered, it was in the status of a lawful

permanent resident.’” Hing Sum, 602 F.3d at 1098 (quoting

Ayala, 22 I & N at 401). According to the Ninth Circuit,

“[t]he same reasoning applies to Sum.” Hing Sum, 602 F.3d

at 1098.

We agree and apply that reasoning to Martinez here.

When the definition of “admitted” is considered in the context

of the Section 212(h) waiver bar, the statutory imperative to

define admission in terms of procedural regularity, as

opposed to substantive satisfaction, is clear. “[P]reviously

admitted…as an alien lawfully admitted for permanent

residence” must be read as one phrase; to read the “lawfully

admitted” portion in isolation would render “previously

8

The First, Fourth and Eleventh Circuits have also approved

of Ayala, albeit in different contexts. See Onwuamaegbu v.

Gonzales, 470 F.3d 405, 408-09 (1st Cir. 2006); Savoury v.

U.S. Att’y Gen., 449 F.3d 1307, 1315 (11th Cir. 2006);

Obioha v. Gonzales, 431 F.3d 400, 409 n.10 (4th Cir. 2005).

12

admitted as” superfluous. “If Congress intended § 212(h) to

bar only ‘alien[s] lawfully admitted for permanent residence,’

there would be no need to describe those non-citizens as also

‘previously . . . admitted to the United States.’” Hing Sum,

602 F.3d at 1097 (quoting Onwuamaegbu v. Gonzales, 470

F.3d 405, 409 (1st Cir. 2006); citing Romero-Ruiz v.

Mukasey, 538 F.3d 1057, 1062 (9th Cir. 2008)).

Additionally, to adopt Martinez’s proposed substantive

reading of the statute would fly in the face of Section 212(h)’s

evident intent. “By using the term ‘previously admitted,’

rather than (for example) ‘previously and lawfully admitted,’

Congress demonstrated that it specifically intended to

penalize those immigrants who sought and gained LPR status

only to abuse its benefits.” Onwuamaegbu, 470 F.3d at 409;

accord Taniguchi v. Schultz, 303 F.3d 950, 958 (9th Cir.

2002) (finding rational basis for denying Section 212(h)

waivers to non-citizens convicted of aggravated felony after

admission as LPRs; because LPRs “enjoy substantial rights

and privileges not shared by other aliens,” they should be held

to a “higher standard and level of responsibility than non-

LPRs”). Indeed, to conclude otherwise would undermine the

IIRIRA’s stated purpose. See Bamba v. Riley, 366 F.3d 195,

202-03 (3d Cir. 2004) (INA “evince[s] a broad Congressional

intent to expedite the removal of criminal aliens”); Zhang v.

I.N.S., 274 F.3d 103, 108 (2d Cir. 2001) (“[I]t is beyond cavil

that one of Congress’s principal goals in enacting IIRIRA was

to expedite the removal of aliens who have been convicted of

aggravated felonies.”). 9 Like the Ninth Circuit, we can

discern “no reason why Congress would give a pass to non-

9

Martinez, for his part, argues that it is our reading of Section

212(h) that would lead to “perverse results when applied to

other federal statutes,” such as legislation relating to an

alien’s eligibility for public benefits such as food stamps or

supplemental security income. Brief for Petitioner at 25.

However, the statutes suggested by Martinez are not part of

the INA and therefore not administered by the BIA;

accordingly, the BIA’s construction of Section 212(h)’s

statutory language is irrelevant as to benefits eligibility. See 8

U.S.C. §§ 1101-1537; 42 U.S.C. §§ 1381 et seq.; 7 U.S.C. §§

2013, 2020.

13

citizens who had fraudulently obtained LPR status while

barring from relief non-citizens who had legitimately

obtained LPR status.” Hing Sum, 602 F.3d at 1097 (citation

omitted); see United States v. Wilson, 503, U.S. 329, 334

(1992) (citing United States v. Turkette, 452 U.S. 576, 580

(1981) (when interpreting statutes, “absurd results are to be

avoided”)). 10

IV. Conclusion

Section 212(h)’s statutory language, construction, and

evolution make clear that “admission” and “admitted” refer,

as in the INA’s definition, to inspection and authorization by

any immigration officer at the port of entry. See 8 U.S.C. §

1101(a)(13)(A). As Martinez was admitted following such

procedures, after failing to disclose his arrest and subsequent

conviction for an aggravated felony, the Section 212(h)

waiver bar applies. For these reasons, we deny the petition for

review.

_______________________________

10

Despite clearly “absurd results,” other circuits have

concluded that Congress may have had rational reasons for

employing statutory language that, in the eyes of those

circuits, unambiguously excepted aggravated felons convicted

post-LPR admission from the waiver bar. See Bracamontes,

675 F.3d at 388; Martinez, 519 F.3d at 545. However, as

discussed above, those circuits considered the import of the

phrase “previously been admitted” but not in its complete

modifying context of “previously been admitted…as.” See

supra, at 11-12.

14