The panel unanimously finds this case suitable for decision without *

oral argument. Fed. R. App. P. 34(a)(2).

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALFREDO ROLANDO LAWRENCE,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney

General,

Respondent.

No. 07-74829

Agency No.

A040-199-868

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted April 8, 2013*

Pasadena, California

Filed May 21, 2013

Before: Ferdinand F. Fernandez, Johnnie B. Rawlinson,

and Jay S. Bybee, Circuit Judges.

Opinion by Judge Fernandez
2 LAWRENCE V. HOLDER

 This summary constitutes no part of the opinion of the court. It has

**

been prepared by court staff for the convenience of the reader.

SUMMARY

**

Immigration

The panel denied Alfredo Rolando Lawrence’s petition

for review of the Board of Immigration Appeals’ decision

finding him ineligible for INA § 212(c) relief, because he is

an aggravated felon who filed his application for relief after

November 29, 1990. 

The panel held that the term “admissions” in § 212(c)’s

effective date provision refers to the date that an alien seeks

relief, and thus the aggravated felony bar applies to

applications filed after November 29, 1990, regardless of the

date the alien was initially admitted to the United States. 

COUNSEL

Duane M. Hamilton, Chow & Hamilton, Buena Park,

California, for Petitioner.

Tony West, Assistant Attorney General, Aviva L. Poczter,

Senior Litigation Counsel, Jesse D. Lorenz, Trial Attorney,

United States Department of Justice, Civil Division, Office of

Immigration Litigation, Washington, D.C., for Respondent.
LAWRENCE V. HOLDER 3

 See Cal. Penal Code § 211. 1

 See Cal. Penal Code § 207(a). 2

OPINION

FERNANDEZ, Circuit Judge:

Alfredo Rolando Lawrence, a native and citizen of

Panama, petitions for review of the Board of Immigration

Appeals’ (BIA) determination that he is not eligible for relief

pursuant to former Immigration and Nationality Act (INA)

§ 212(c) (8 U.S.C. § 1182(c) (1992)) because he is an

aggravated felon, who filed his application for relief after

November 29, 1990. We deny the petition.

BACKGROUND

Lawrence was admitted to the United States on June 16,

1987, as a lawful permanent resident (LPR). On May 12,

1992, the State of California charged him with armed

robbery and kidnapping. He pled guilty to both charges 1 2

pursuant to a plea agreement and was sentenced to nine years

imprisonment on each offense. He served five years and

seven months of his term and was released on December 16,

1997. A few weeks before his release, a Notice to Appear

(NTA) was issued pursuant to INA § 237(a)(2)(A)(iii),

(a)(2)(A)(i)(8 U.S.C. § 1227(a)(2)(A)(iii), (i)). It alleged that

he was removable as an LPR convicted of an aggravated

felony and a crime involving moral turpitude.

At his hearing on the NTA, the Immigration Judge (IJ)

sustained the factual allegations in the NTA and found that

Lawrence was removable. Lawrence indicated to the IJ that
4 LAWRENCE V. HOLDER

 United Nations Convention Against Torture and Other Cruel, Inhuman 3

or Degrading Treatment or Punishment, adopted Dec. 10, 1984, S. Treaty

Doc. No. 100-20 (1988), 1465 U.N.T.S. 85, implemented at 8 C.F.R.

§ 1208.18.

he sought asylum and withholding of removal. He also

briefed the IJ on the availability of relief under the

Convention Against Torture (CAT).3

On October 5, 1998, the IJ issued a decision, finding

Lawrence ineligible for asylum and withholding of removal

because he had been convicted of an aggravated felony that

was a particularly serious crime, and stating that the IJ lacked

jurisdiction over Lawrence’s CAT claim. The IJ ordered him

removed to Panama.

Lawrence appealed the IJ’s decision to the BIA. The BIA

dismissed his appeal with respect to asylum and withholding

of removal, but remanded on the question of CAT protection.

It determined that the IJ did have jurisdiction to consider the

CAT issue. On remand, Lawrence applied for a waiver under

§ 212(c) of the INA (hereafter § 212(c)) for the first time on

March 2, 2004. However, § 212(c) relief is barred for

applicants who have been convicted of an aggravated felony

and served over five years in prison. Immigration Act of

1990 (IMMACT), Pub. L. No. 101–649, § 511 (a) & (b), 104

Stat. 4978, 5052 (hereafter § 511(a) and § 511(b),

respectively). Lawrence asserted that he could seek § 212(c)

relief despite the bar because it applied only to “admissions”

taking place on or after November 29, 1990, but he was

admitted as an LPR in 1987. He then withdrew his

application for CAT protection, which left only his

application for § 212(c) relief pending.
LAWRENCE V. HOLDER 5

On March 13, 2006, the IJ pretermitted Lawrence’s

application for § 212(c) relief on the ground that he had been

convicted of an aggravated felony for which he had served

more than five years in prison and thus was barred from

seeking a § 212(c) waiver. Lawrence appealed that decision

to the BIA, which adopted and affirmed the IJ’s decision on

November 13, 2007. The BIA noted that it was “well settled”

that the aggravated felony bar to a § 212(c) waiver applied to

applications for a waiver filed after November 29, 1990,

regardless of the alien’s initial admission date to the United

States. This petition for review followed.

JURISDICTION AND STANDARDS OF REVIEW

We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1).

We review the BIA’s factual determinations for

substantial evidence and treat the BIA’s determinations as

“‘conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary.’” Lopez-Cardona v.

Holder, 662 F.3d 1110, 1111 (9th Cir. 2011); see also INS v.

Elias-Zacarias, 502 U.S. 478, 481 & n.1, 483–84, 112 S. Ct.

812, 815 & n.1, 817, 117 L. Ed. 2d 38 (1992).

We review issues of law de novo, but “subject to

established principles of deference.” Edu v. Holder, 624 F.3d

1137, 1142 (9th Cir. 2010) (internal quotation marks

omitted); see also Garcia v. Holder, 659 F.3d 1261, 1265–66

(9th Cir. 2011). We owe deference to the legal interpretations

of the Attorney General, if they are “based on a permissible

construction of the statute.” Chevron, U.S.A., Inc. v. Natural

Res. Def. Council, Inc., 467 U.S. 837, 843, 104 S. Ct. 2778,

2782, 81 L. Ed. 2d 694 (1984); see also INS v.

Aguirre-Aguirre, 526 U.S. 415, 424, 119 S. Ct. 1439, 1445,
6 LAWRENCE V. HOLDER

 Although the section has been repealed, it is still applicable to those 4

aliens who pled guilty to offenses while it was in effect — that is, before

April 1, 1997. See INS v. St. Cyr, 533 U.S. 289, 297, 326, 121 S. Ct.

2271, 2277, 2293, 150 L. Ed. 2d 347 (2001). Because Lawrence pled

guilty on May 19, 1992, the section is applicable to him.

 As it applies to Lawrence, § 212(c) reads as follows in pertinent part: 5

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

143 L. Ed. 2d 590 (1999). We also owe deference to the legal

determinations of the BIA, but that presentsmore complexity.

In this case, the BIA’s legal determination was essentially as

set forth in a published opinion of five members of the BIA.

See In re A– A–, 20 I. & N. Dec. 492 (BIA 1992). Thus, to

the extent we are reviewing its decision, we also owe its

determination deference if “based on a permissible

construction of the statute.” Chevron, 467 U.S. at 843, 104

S. Ct. at 2782; see also Aguirre-Aguirre, 526 U.S. at 424, 119

S. Ct. at 1445.

Finally, as to the particulars of the case at hand, we

review “the decision of the IJ, as well as any additional

reasoning offered by the BIA.” Husyev v. Mukasey, 528 F.3d

1172, 1177 (9th Cir. 2008).

DISCUSSION

Lawrence sought relief from removal pursuant to

§ 212(c), despite the fact that he had committed an 4

aggravated felony and had served more than five years in

prison as a result.5
LAWRENCE V. HOLDER 7

General . . . . The first sentence of this subsection shall

not apply to an alien who has been convicted of one or

more aggravated felonies and has served for such

felony or felonies a term of imprisonment of at least

five years.

On its face, the statute applied to exclusion proceedings only, but it can be

applied to deportation proceedings as well. See 8 C.F.R. § 1212.3; Pascua

v. Holder, 641 F.3d 316, 319 n.2 (9th Cir. 2011); Tapia-Acuna v. INS,

640 F.2d 223, 225 (9th Cir. 1981), overruled by Abebe v. Mukasey,

554 F.3d 1203, 1207 (9th Cir. 2009) (en banc) (per curiam); In re Silva,

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

Congress amended § 212(c) when it enacted the

aggravated felony bar to relief on November 29, 1990.

Sections 511(a) and 511(b) of IMMACT provide:

(a) IN GENERAL. — Section 212(c)

(8 U.S.C. § 1182(c)) is amended by adding at

the end the following: “The first sentence of

this subsection shall not apply to an alien who

has been convicted of an aggravated felony

and has served a term of imprisonment of at

least five years.”

(b) EFFECTIVE DATE. — The amendment

made by subsection (a) shall apply to

admissions occurring after the date of the

enactment of this Act.

Thereafter, the bar was expanded to cover an alien who

has committed “one or more aggravated felonies and has
8 LAWRENCE V. HOLDER

 See Miscellaneous and Technical Immigration and Naturalization 6

Amendments of 1991, Pub. L. No. 102–232, § 306(a)(10), 105 Stat. 1733,

1751.

served for such felony or felonies” a term of imprisonment 6

of at least five years, but that does not affect our analysis.

There can be no doubt that the aggravated felony bar does

apply to Lawrence if within the meaning of § 511(b) his

“admission” occurred after November 29, 1990. As already

indicated, his convictions occurred on May 19, 1992, and his

application for § 212(c) relief was filed on March 2, 2004.

The BIA determined that the bar applied to him because his

application for relief was filed after November 29, 1990.

Lawrence disagrees with the BIA’s determination and

points to the fact that, in general, the words “admission” and

“admitted” mean “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). Thus, he argues that

because he was admitted as an LPR on or about June 16,

1987, the felony bar does not apply to him.

Lawrence’s argument would be plausible, if it were not

for the unique history of § 212(c). Read literally, § 212(c)

relief would not apply to him at all — on its face it only

refers to aliens who had been “lawfully admitted” but left and

then sought to be admitted again. However, that does not

describe Lawrence; he did not literally seek admission in

2004 because he had never left. When Congress acted,

§ 212(c) could have been applied to a person in his position

because “the distinction between reentry and deportation

[had] been blurred.” Samaniego-Meraz v. INS, 53 F.3d 254,

257 (9th Cir. 1995), overruled on other grounds by Toia v.
LAWRENCE V. HOLDER 9

 See Tapia-Acuna, 640 F.2d at 225; Francis v. INS, 532 F.2d 268, 273 7

(2d Cir. 1976); In re Silva, 16 I. & N. Dec. at 30.

Fasano, 334 F.3d 917, 921 (9th Cir. 2003). Thus, when

Congress used the term “admissions” in the effective date

provision in § 212(c), it could have been referring to the

initial admission of an alien (i.e., the first usage of the term

admission in § 212(c), which refers to “[a]liens lawfully

admitted for permanent residence”), or it could have been

referring to the second admission requested when the alien

returned after leaving (i.e., the second usage of the term

admission in § 212(c), which states that aliens “may be

admitted in the discretion of the Attorney General”). It is not

likely that Congress meant the former, rather than the latter,

which is the date on which the alien would have been seeking

reentry but found himself in the status of an aggravated felon.

Because the very purpose of the judicial expansion of

§ 212(c) relief to those who had not left was to ensure that

they would be given treatment equal to that of returning

aliens, they should be treated in that fashion for the purposes 7

of § 511(b). That is, the date that they seek the equivalent of

“returning” relief should be used; that date, at the earliest, is

the date of their application for relief. Still, we agree that

some ambiguity remains.

The Attorney General has resolved the ambiguity, and we

owe that determination deference. On October 3, 1991, the

Attorney General issued an interim rule for the purpose of

amending the Code of Federal Regulations to implement

§ 511(a) and (b). See Interim Rule re 212(c) Waiver, 56 Fed.

Reg. 50,033–34 (Oct. 3, 1991). The Attorney General noted

that the aggravated felony bar had been enacted and went on

to explain:
10 LAWRENCE V. HOLDER

As used in section 511(b) of IMMACT,

the term “admissions” covers all applications

under the Act for section 212(c) relief,

whether actually made upon application for

admission into the United States or made only

after entry. The language of the waiver

contained in section 212(c) applies by its

terms only to applications for readmission

into the United States by inadmissible lawful

permanent resident aliens who temporarily

proceeded abroad voluntarily. However, the

Attorney General has long equated

applications for section 212(c) relief which

are made during deportation proceedings after

entry, with those applications made at the

time an alien physically seeks admission into

the United States. This treatment has been

accepted and expanded by the courts, and

applies even if the alien did not depart the

United States after becoming excludable.

Thus, under the prevailing interpretation, the

phrase “shall apply to admissions” as used in

section 511(b) of IMMACT refers to all

applications for relief pursuant to section

212(c) of the Act submitted after November

29, 1990 . . . .

Id. at 50,033 (citations omitted). As suggested by our

previous discussion, that determination was “based on a

permissible construction of the statute.” Chevron, 467 U.S.

at 843, 104 S. Ct. at 2782; see also Aguirre-Aguirre, 526 U.S.

at 424, 119 S. Ct. at 1445.
LAWRENCE V. HOLDER 11

 See 8 C.F.R. § 212.3 (1992); on February 28, 2003, the number of the 8

regulation was changed to 8 C.F.R § 1212.3 without material change.

The BIA later commented upon the regulation; it noted 8

that Congress had “specified that [the aggravated felony bar]

was to be virtually immediate.” In re A– A–, 20 I. & N. Dec.

at 501. It went on to declare: “The Attorney General has

thereby determined that the statutory bar to section 212(c)

relief shall apply only to those applications submitted after

November 29, 1990. We are therefore bound by his

determination in this regard.” Id. at 502. That, of course,

was the rule followed in the case at hand. Again, we defer.

Six other circuit courts of appeals have had occasion to

comment on whether the date of application for relief is the

operative date for this purpose. All agree with the agency’s

construction of § 511(b).

The Fourth Circuit Court of Appeals responded to an

attack similar to Lawrence’s as follows:

We find the Board’s and the Attorney

General’s interpretation to be reasonable and

consistent with congressional intent.

Although the [aliens] are correct with regard

to the technical meaning of “admissions” in

the context of immigration laws, the

interpretation they advocate would require

ignoring the administrative and judicial

interpretations which have broadened the

meaning of “admissions” in the § 212(c)

context. These decisions have held that

§ 212(c) no longer exclusively applies to

aliens who have departed and are seeking
12 LAWRENCE V. HOLDER

reentry or readmission back into the United

States, but also to those who have not

departed but are in deportation proceedings.

We do not believe it is unreasonable for

Congress to assume that its use of the term

“admissions” in the amendment to § 212(c)

would be subject to the prevailing judicial and

administrative interpretation. Accordingly,

we affirm the Board’s conclusion that the

aggravated felony bar applies to the [aliens]

because their applications for § 212(c) relief

were filed after . . . the enactment date of

IMMACT.

De Osorio v. INS, 10 F.3d 1034, 1039 (4th Cir. 1993)

(citations omitted). Other courts of appeals have agreed,

although sometimes with less than hyaline reasoning. See

Velez-Lotero v. Achim, 414 F.3d 776, 780, 781 (7th Cir.

2005); Gomes v. Ashcroft, 311 F.3d 43, 45–46 (1st Cir. 2002);

Scheidemann v. INS, 83 F.3d 1517, 1519–20, 1525–26 (3rd

Cir. 1996); Campos v. INS, 16 F.3d 118, 120–21 (6th Cir.

1994); Buitrago-Cuesta v. INS, 7 F.3d 291, 292 (2d Cir.

1993); Cortes-Castillo v. INS, 997 F.2d 1199, 1202 n.1 (7th

Cir. 1993); see also Saravia-Paguada v. Gonzales, 488 F.3d

1122, 1132–35 (9th Cir. 2007) (applying § 511(a) to an alien

admitted before the effective date of IMMACT without any

reference to § 511(b)). If we had any remaining doubt, those

cases would absterge it.
LAWRENCE V. HOLDER 13

 Lawrence also makes a halfhearted equal protection argument, without 9

citation to pertinent authorities. His claim is otiose. There can be no

doubt that Congress can rationally distinguish between aliens who commit

felonies and those who do not. See Alvarenga-Villalobos v. Ashcroft,

271 F.3d 1169, 1174 (9th Cir. 2001); United States v. Yacoubian, 24 F.3d

1, 8 n.3 (9th Cir. 1994). Similarly, Congress can certainly draw lines that

specify effective dates when it enacts or amends relief statutes. See

Hernandez-Mezquita v. Ashcroft, 293 F.3d 1161, 1164–65 (9th Cir. 2002).

Moreover, Lawrence, who committed and pled guilty to a felony after

IMMACT’s enactment, is not similarly situated to those who pled before

the enactment. See Chan v. Reno, 113 F.3d 1068, 1073–74 (9th Cir.

1997); see also Toia v. Fasano, 334 F.3d 917, 920–21 (9th Cir. 2003).

Therefore, we hold that the aggravated felony bar applies

to Lawrence’s attempt to seek § 212(c) relief.9

CONCLUSION

Lawrence, an LPR and aggravated felon, hopes to take

advantage of the relief provided by § 212(c), but that hope

has induced him to chase an eidolon. As an aggravated felon,

who filed his application for relief after November 29, 1990,

he falls outside of the protective scope of § 212(c).

Petition DENIED.