Rivas v. U.S. Attorney General

In Rivas v. U.S. Attorney General, No. 13-13069 (Sep. 3, 2014), the Eleventh Circuit considered whether a deportable alien, after leaving and reentering the United States, could acquire nun pro tunc a stand-alone waiver of inadmissibility.  The Court determined that the Board of Immigrations Appeals (the “Board”) correctly held Rivas ineligible for a waiver of inadmissibility, and reasonably interpreted the amended waiver provision in the Immigration and Nationality Act. See 8 U.S.C. § 1182(h).  As a result, the Eleventh Circuit denied Rivas’ petition for review of the Board’s removal order.

The petitioner, a Colombian citizen, legally resided in the United States beginning in 1998.  In 2001, the State of Florida convicted him for petit larceny on two separate occasions.  Rivas made three trips outside the United States in 2004, 2005, and 2006, each time reentering the United States without incident despite his removable status. In 2007, the petitioner applied for United States citizenship, but his criminal convictions resulted in (1) the Department of Homeland Security’s denial of the application and (2) the initiation of removal proceedings.  At the removal hearing before an immigration court, Rivas filed a stand-alone waiver of inadmissibility and argued the Board’s previous holding in Matter of Sanchez, 17 I. & N. Dec 218 (BIA 1980) allowed the immigration judge to grant a waiver nunc pro tunc if, “at the time of the alien’s last entry, he was inadmissible because of the same facts which form the basis of his deportability.” Sanchez, 17 I. & N. Dec. at 223 (quoting Matter of Tanori, 15 I & N. Dec. 566, 568 (BIA 1976)).  The immigration judge granted the waiver, and the Department appealed to the Board.

Upon reviewing the grant of the waiver, the Board “concluded that Congress had abrogated [the Board’s] interpretation in Matter of Sanchez”). Thus, the immigration court’s grant of a waiver could not stand and Rivas must be removed.  Rivas at *4.   Congress amended the waiver provision in 1996, after Sanchez, to “require that an alien seek a waiver of inadmissibility when he applies for a visa, admission to the United States, or an adjustment of status.” Id. at *2.  The Board relied on the Eleventh Circuit’s decision in Poveda as the basis for why its interpretation of the waiver provision was reasonable.  In Poveda, the Eleventh Circuit determined the applicant to be ineligible for a waiver and held that the Board reasonably interpreted the amended waiver provision to mean that a removable alien, within the United States could not be eligible for a waiver of inadmissibility without simultaneously seeking an adjustment of status.

Here, the Eleventh Circuit, reviewing the Board’s interpretation of the statute once more, still held the Board’s interpretation of the waiver provision to be “reasonable in the light of the statutory amendments, even as applied to Rivas.” Id. at *9.  The Court rejected the petitioner’s attempt to “reinstate the Sanchez exception” by distinguishing himself from the petitioner in Poveda. 

The Eleventh Circuit offered several bases for why the Board’s interpretation was reasonable. First, the interpretation fit within the overall regulatory scheme “governing an application for a waiver of inadmissibility,” Id. at *9, because the relevant regulation required an application for an adjustment of status in order for an alien within the United States to apply for a waiver. See 8 C.F.R.  § 1245.1(f).  Second, the statutory amendment’s plain language clearly warranted the Board’s interpretation because “[t]o allow a nunc pro tunc waiver to a removable alien who has not concurrently filed adjustment of status application would render Congress’s recent addition of the ‘adjustment of status’ language superfluous.” Rivas at *10.  Third, the Board’s interpretation allowed for better equal protection of the law because it determined availability of a waiver by distinguishing between aliens seeking readmission to the United States and those lawfully within the United States but subject to removal, Id., — not by simply distinguishing “between aliens based on international travel.” Id at *6.  The Eleventh Circuit disagreed with Rivas’ argument that the Board had no rational basis for overturning Sanchez through the interpretation of the waiver provision.  The Court argued that Congress and the Board “had at least five rational bases” for denying a Sanchez exception and “for drawing this classification between aliens.” See id. at *11 (discussing reasons behind distinguishing aliens based on their relative location to the United States).

Because the Board reasonably interpreted the amended statute, and both Congress and the Board had rational bases for distinguishing between aliens, the Eleventh Circuit upheld the Board’s removal order.


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