Argued and Submitted Dec. 9, 2011.
[Copyrighted Material Omitted]
Michael K. Mehr (argued) and Rachael E. Keast, Santa Cruz, California, for Petitioner.
Laura Halliday Hickein (argued) and Nancy Canter, Washington, D.C., for Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A079-355-559.
Before: DIARMUID F. O'SCANNLAIN, ROBERT E. COWEN,[*] and MARSHA S. BERZON, Circuit Judges.
COWEN, Circuit Judge:
Juana Negrete-Ramirez petitions for review of the Board of Immigration Appeal's (" BIA" ) order dismissing her appeal. Negrete-Ramirez contends that the BIA erred in determining that the statutory language of the Immigration and Nationality Act (" INA" ) excludes her from eligibility to apply for an inadmissibility waiver under Section 212(h) of the INA, 8 U.S.C. § 1182(h) ( " § 212(h) waiver" ). In reaching its conclusion, the BIA misinterpreted the plain language of INA § 212(h) and Ninth Circuit precedent. A de novo review of the statutory text, as well as the precedent of this Court and our sister Circuits, leads to the conclusion that Negrete-Ramirez is eligible to be considered for the § 212(h) waiver. See Papazoglou v. Holder, 725 F.3d 790, 792-94 (7th Cir.2013); Leiba v. Holder, 699 F.3d 346, 348-56 (4th Cir.2012); Hanif v. Attorney General, 694 F.3d 479, 483-87 (3d Cir.2012); Martinez v. Attorney General, 693 F.3d 408, 411-16 (3d Cir.2012); Bracamontes v. Holder, 675 F.3d 380, 384-89 (4th Cir.2012); Lanier v. Attorney General, 631 F.3d 1363, 1365-67 (11th Cir.2011); Martinez v. Mukasey, 519 F.3d 532, 541-46 (5th Cir.2008). We grant the petition for review and remand to the BIA with instructions to remand to the Immigration Judge (" IJ" ) so that Negrete-Ramirez may seek a § 212(h) waiver.
Negrete-Ramirez was admitted into the United States, as defined bye 8 U.S.C. 1101(a)(13), in April 1996 on a B2 visitor visa. She subsequently adjusted her status to that of a lawful permanent resident (" LPR" ). Four years later, Negrete-Ramirez pleaded nolo contendre to two counts of committing a lewd act upon a child in violation of Section 288(a) of the California Penal Code. In January 2009, she was returning from abroad and was paroled  into the United States by the Bureau of Border and Customs Protection. Removal proceedings were initiated against her after she was served with a Notice to Appear. In the Notice to Appear, the Department of Homeland Security charged her with being inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(I), as an alien convicted of a crime involving moral turpitude.
At the removal hearing, the IJ found Negrete-Ramirez removable as charged. When she informed the IJ that she would apply for relief in the form of cancellation of removal under 8 U.S.C. § 1229b, the IJ held that her conviction was for an aggravated felony, and she was ineligible for cancellation of removal. Negrete-Ramirez
appealed this decision to the BIA, but the record could not be located and the case was remanded to develop a new record.
On remand, Negrete-Ramirez made a motion to the IJ to calendar proceedings to allow her to apply for a § 212(h) waiver. A § 212(h) waiver is granted at the discretion of the Attorney General to aliens whose inadmissibility is based on certain criteria. The IJ calendared a hearing for her § 212(h) waiver application. At the hearing, the IJ determined that she was not eligible to apply for the § 212(h) waiver because of her aggravated felony conviction following her adjustment of status to an LPR. Matter of Juana Negrete Ramirez, A79 355 559 (Oct. 22, 2009). Negrete-Ramirez appealed the decision to the BIA. The BIA found her ineligible to apply for the § 212(h) waiver due to her aggravated felony because she was " ‘ admitted’ to the United States when she adjusted her status in 2002" and affirmed the IJ's order. Matter of Juana Negrete-Ramirez, A079 355 559 (BIA Apr. 21, 2010).
The issue before us is whether a noncitizen, who is admitted to the United States on a visitor visa and later adjusts her status to a lawfully admitted permanent resident without leaving the United States, qualifies under 8 U.S.C. § 1182(h) as " an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence," and, therefore, is ineligible to apply for a § 212(h) waiver.
We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to review the legal question of whether Negrete-Ramirez is statutorily eligible to apply for a § 212(h) waiver. De novo review of a statutory construction begins with the text of the statute. See, e.g., Hing Sum v. Holder, 602 F.3d 1092, 1095 (9th Cir.2010). " In the context of an unambiguous statute, we need not contemplate deferring to the agency's interpretation." Barnhart v. Sigmon Coal Co., 534 U.S. 438, 462, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002) (citing Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)).
If " Congress has directly spoken to the precise question at issue," the Court " must give effect to the unambiguously expressed intent of Congress." Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778; Sum, 602 F.3d at 1095. Review of the relevant statutory text and " employ[ment of] traditional tools of statutory construction," Chevron, 467 U.S. at 843 n. 9, 104 S.Ct. 2778, leads to the conclusion that the text is unambiguous and that the bar to seeking a § 212(h) waiver of inadmissibility does not apply to persons who adjusted to lawful permanent resident status after having entered into the United States by inspection. To date, our sister Circuits have— without exception— " held that § 212(h) precludes a waiver only for those persons who, at the time they lawfully entered into the United States, had attained the status of lawful permanent residents." Papazoglou ...