14-607

Husic v. Holder

UNITED STATES COURT OF APPEALS

F OR THE S ECOND C IRCUIT

_______________

August Term, 2014

(Argued: November 25, 2014 Decided: January 8, 2015)

Docket No. 14

‐ 607

_______________

H ASIM H USIC

,

Petitioner

,

—v.—

E RIC H. H OLDER

, J R

., United States Attorney General,

Respondent

,

_______________

B e f o r e: K ATZMANN

, Chief Judge

, W INTER

, Circuit Judge

, and M ARRERO

, * District

Judge

.

_______________

* The Honorable Victor Marrero, of the United States District Court for the

Southern District of New York, sitting by designation.2 Petition for review of a Board of Immigration Appeals (“BIA”) decision

ordering the petitioner’s removal, denying his request for a waiver of

inadmissibility under § 212(h) of the Immigration and Nationality Act, 8 U.S.C.

§ 1182(h), and denying his request for a continuance. We conclude that the

petitioner, who was a lawful permanent resident (“LPR”) and initially entered the

country lawfully without LPR status, is eligible to seek a waiver under § 212(h)

because he is unambiguously not “an alien who has previously been admitted to

the United States as an alien lawfully admitted for permanent residence.” We

therefore GRANT the petition in part, VACATE the petitioner’s removal order to

permit his application for a waiver of inadmissibility under § 212(h), DISMISS

the remainder of the petition as moot, and REMAND for further proceedings

consistent with this Opinion.

_______________

M ICHAEL P. D I R AIMONDO (Marialaina L. Masi, Thomas E. Moseley,

Stacy A. Huber, on the brief ), DiRaimondo & Masi, LLP,

Melville, New York, for Petitioner

.

Y EDIDYA C OHEN

, Trial Attorney, Office of Immigration Litigation;

Stuart F. Delery, Assistant Attorney General, Civil Division;

Jennifer Williams, Senior Litigation Counsel, Office of

Immigration Litigation, United States Department of Justice,

Washington, D.C., for Respondent

.

(Russell R. Abrutyn, Troy, Michigan, and Mary Kenney, Washington,

D.C., for Amici Curiae American Immigration Lawyers

Association and the American Immigration Council.)

_______________

K ATZMANN

, Chief Judge :

Petitioner Hasim Husic, a native of the former Yugoslavia and citizen of

Montenegro, seeks review of a February 4, 2014 non

‐ precedential decision of the3 Board of Immigration Appeals (“BIA”) affirming the September 18, 2013 decision

of an Immigration Judge (“IJ”) (Sagerman, I.J. ), which ordered Husic’s removal,

denied his request for a waiver of inadmissibility under Immigration and

Nationality Act (“INA”) § 212(h), 8 U.S.C. § 1182(h), and denied his request for a

continuance. In re Hasim Husic

, No. A073 535 928 (B.I.A. Feb. 4, 2014), aff’g No.

A073 535 928 (Immig. Ct. Fishkill, N.Y. Sept. 18, 2013).

This case presents an issue of first impression in this Circuit

— whether an

alien who lawfully entered the country without lawful permanent resident

(“LPR”) status but later adjusted to LPR status is eligible to seek a waiver of

inadmissibility under INA § 212(h). We join seven sister Circuits and find that an

alien like Husic is unambiguously not “an alien who has previously been

admitted to the United States as an alien lawfully admitted for permanent

residence.” INA § 212(h), 8 U.S.C. § 1182(h). Husic is therefore eligible to seek a

waiver under INA § 212(h) if the Attorney General chooses to exercise favorable

discretion. Husic concedes, however, that his challenge to the denial of his request

for a continuance is moot. Accordingly, we GRANT the petition in part, VACATE

Husic’s removal order to permit his application for a waiver of inadmissibility4 under § 212(h), DISMISS the remainder of the petition as moot, and REMAND for

further proceedings consistent with this Opinion.

BACKGROUND

Petitioner is a 65

‐ year

‐ old native of the former Yugoslavia and citizen of

Montenegro. He entered the United States as a B

‐ 2 visitor on or about July 5, 1994,

was subsequently granted political asylum in 1995, and became an LPR on July

28, 1998 based upon an application for adjustment of status. Husic’s wife of 39

years is also an LPR. He and his wife are the parents of three children, two LPRs

and a U.S. citizen.

On or about August 21, 2012, Husic pleaded guilty to violating New York

Penal Law § 265.03, attempted criminal possession of a weapon in the second

degree. He was sentenced to three years’ incarceration.

Then, on or about February 11, 2013, Husic was served with a Notice to

Appear. He was charged with removability pursuant to INA § 237(a)(2)(C) and

237(a)(2)(A)(iii). Removal proceedings commenced before the IJ. Husic eventually

admitted to the allegations in the Notice to Appear, admitted the charge of

removability based on a firearms offense, and denied the two removal charges5 based on aggravated felonies. Counsel then informed the IJ of Husic’s intention to

apply for a waiver under INA § 212(h)(1)(B).

On September 18, 2013, the IJ issued an oral decision. He held that Husic’s

conviction constituted an aggravated felony under both INA § 101(a)(43)(F) and

101(a)(43)(U). The IJ further held that, although Husic “expressed his desire to

apply for adjustment of status under Section 245 of the [INA] with a waiver of

inadmissibility under Section 212(h),” Husic was not eligible for such relief

because he is an LPR who has been convicted of an aggravated felony and

therefore “cannot obtain the necessary waiver under Section 212(h)

. . . , as is the

prevailing view of the immigration laws here in the Second Circuit.” Special App.

4. Finally, the IJ denied Husic’s motion for a continuance to pursue a collateral

attack of the conviction.

Husic appealed to the BIA, and on February 4, 2014, the BIA dismissed the

appeal, largely adopting the IJ’s reasoning. The instant petition for review was

timely filed on February 26, 2014. 1

1 On October 20, 2014, we granted permission to the American Immigration

Lawyers Association and the American Immigration Council to file a joint brief in

support of the petitioner as amici curiae

.6 DISCUSSION

On appeal, Husic challenges the IJ and BIA’s decisions (1) finding that he is

ineligible for adjustment of status under INA § 245 because he was convicted of

an aggravated felony and is therefore ineligible for a § 212(h) waiver and (2)

denying his application for a continuance to pursue post

‐ conviction relief.

We review questions of law de novo

, but must give appropriate deference

under Chevron, U.S.A., Inc. v. Natural Resources Defense Council Inc. (“ Chevron ”),

467 U.S. 837 (1984), to the Board’s interpretation of the INA. Ganzhi v. Holder

, 624

F.3d 23, 28 (2d Cir. 2010) (per curiam).

I. Husic’s Eligibility for a Waiver Under INA § 212(h)

We first consider whether the IJ and BIA erred in finding that Husic is

ineligible to seek a waiver of inadmissibility under INA § 212(h). 2 The critical

2 Neither party has challenged this Court’s jurisdiction to consider this

portion of Husic’s petition. Because we have an independent obligation to

ascertain our jurisdiction, we have considered the basis for our jurisdiction. Even

though we generally lack jurisdiction to review “any judgment regarding the

granting of relief under [INA § 212(h)],” 8 U.S.C. § 1252(a)(2)(B)(i), we have

“jurisdiction to review nondiscretionary decisions regarding an alien’s eligibility

for the relief specified in 8 U.S.C. § 1252(a)(2)(B)(i).” Sepulveda v. Gonzales

, 407 F.3d

59, 62–63 (2d Cir. 2005).7 issue is whether Husic is “an alien who has previously been admitted to the

United States as an alien lawfully admitted for permanent residence.” INA

§ 212(h), 8 U.S.C. § 1182(h). If he is such an alien, he is statutorily barred from

seeking a § 212(h) waiver, but if he is not, he would be able to seek that

discretionary relief.

By way of background, Husic requests a discretionary adjustment of status

under INA § 245(a). To be eligible for such adjustment, however, he must, inter

alia

, be “admissible to the United States for permanent residence.” 8 U.S.C.

§ 1255(a)(2). To determine Husic’s admissibility, we turn to the requirements

contained in INA § 212. The parties agree that he is inadmissible under

§ 212(a)(2), presumably because Husic has been convicted of “a crime involving

moral turpitude (other than a purely political offense) or an attempt or conspiracy

to commit such a crime.” 3 Id. § 1182(a)(2)(A)(i)(I). Nevertheless, Husic might be

3 The parties do not raise the question of whether the crime of which Husic

was convicted

— N.Y. Penal Law § 265.03, attempted criminal possession of a

weapon in the second degree

— constitutes a crime involving moral turpitude. In

a recent decision, this Court remanded to the agency for it to make this threshold

determination in the context of another criminal provision. See Sampathkumar v.

Holder

, 573 F. App’x 55, 59 (2d Cir. 2014). But, unlike in Sampathkumar

, we lack8 eligible to seek a waiver of his inadmissibility under § 212(h)(1)(B) because he is

the spouse of an LPR and the parent of both a citizen and two LPRs. Section

212(h)(1)(B) provides that the Attorney General may, in his discretion, waive a bar

on admissibility based on § 212(a)(2)(A)(i)(I) if removal would “result in extreme

hardship to the United States citizen or lawfully resident spouse, parent, son, or

daughter of such alien.” Id. § 1182(h)(1)(B). “[I]n the case of an alien who has

previously been admitted to the United States as an alien lawfully admitted for

permanent residence,” however, a waiver is barred if “since the date of such

admission the alien has been convicted of an aggravated felony.” Id. § 1182(h).

The INA also defines two sets of terms contained in § 212(h) that are central

to this petition. INA § 101(a)(13)(A) provides that “[t]he terms ‘admission’ and

‘admitted’ mean, with respect to an alien, the lawful entry of the alien into the

United States after inspection and authorization by an immigration officer.” Id.

§ 1101(a)(13)(A). Additionally, INA § 101(a)(20) defines the term “lawfully

jurisdiction under 8 U.S.C. § 1252(a)(2)(C) and (D) to consider whether the crime

is one that involves moral turpitude. Because there is no dispute that Husic

committed an aggravated felony, our review is limited to “constitutional claims or

questions of law raised upon a petition for review ,” 8 U.S.C. § 1252(a)(2)(C), (D)

(emphasis added), and Husic does not raise this legal question in his petition.9 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.” Id. § 1101(a)(20).

Husic contends that although he was convicted of an aggravated felony, the

§ 212(h) aggravated

‐ felony bar does not apply to him because he is not “an alien

who has previously been admitted to the United States as an alien lawfully

admitted for permanent residence.” He reasons that he was admitted to the

United States as a visitor, and not as an LPR, and therefore attained LPR status

through adjustment of status, rather than when he was admitted into the country.

Seven of our sister Circuits have held that a person in Husic’s position is eligible

to seek a waiver of inadmissibility based upon the plain language of § 212(h). See,

e.g.

, Hanif v. Att’y Gen.

, 694 F.3d 479 (3d Cir. 2012); Bracamontes v. Holder

, 675 F.3d

380 (4th Cir. 2012); Martinez v. Mukasey

, 519 F.3d 532 (5th Cir. 2008); Stanovsek v.

Holder

, 768 F.3d 515 (6th Cir. 2014); Papazoglou v. Holder

, 725 F.3d 790 (7th Cir.

2013); Negrete

‐ Ramirez v. Holder

, 741 F.3d 1047 (9th Cir. 2014); Lanier v. U.S. Att’y

Gen.

, 631 F.3d 1363 (11th Cir. 2011). But see Roberts v. Holder

, 745 F.3d 928 (8th Cir.10 2014) (per curiam) (holding that this provision is ambiguous and that the BIA’s

interpretation is reasonable). Relying on these cases and a textual analysis of the

provisions at issue, Husic argues that § 212(h) has been made unavailable only to

an alien who was admitted as an LPR, rather than one who, like Husic, adjusted to

LPR status once already in the United States after lawful entry as a visitor.

In response, the government contends that Husic is barred from seeking a

§ 212(h) waiver because the BIA reasonably interpreted the ambiguous provision

to find that Husic is “an alien who has previously been admitted to the United

States as an alien lawfully admitted for permanent residence.” Under the BIA’s

interpretation, Husic was “admitted to the United States as an alien lawfully

admitted for permanent residence” when he obtained LPR status following the

approval of his application for adjustment of status. In support of its view, the

government relies on the one Circuit decision adopting its view, see Roberts

, 745

F.3d 928, as well as intratextual arguments, legislative history, and a purposive

invocation to avoid absurd results.

We afford “ Chevron deference” to the BIA’s interpretations of statutes when

those interpretations are issued as binding, published decisions. See Ganzhi

, 62411 F.3d at 28. While the BIA’s decision in this case was a single

‐ member non

‐

precedential decision, we have previously held that “where

. . . the challenged

unpublished decision relies on a binding published decision, Chevron deference

will extend to that earlier decision’s reasonable resolution of statutory

ambiguity.” Mizrahi v. Gonzales

, 492 F.3d 156, 158 (2d Cir. 2007). Because the BIA

relied on its earlier precedential decision, In re Koljenovic

, 25 I. & N. Dec. 219

(B.I.A. 2010), in interpreting § 212(h), we apply Chevron deference to the BIA’s

interpretation.

The Chevron inquiry is two

‐ fold. We must first “consider de novo whether

Congress has clearly spoken to the question at issue.” Mizrahi

, 492 F.3d at 158. If it

has, “‘that is the end of the matter.’” Id. (quoting Chevron

, 467 U.S. at 842–43). If,

however, we find that the statute is silent or ambiguous as to the precise question

at issue, “we must defer to any reasonable interpretation of the statute adopted by

the BIA as the entity charged by Congress with the statute’s enforcement.” Boluk

v. Holder

, 642 F.3d 297, 301 (2d Cir. 2011) (internal quotation marks and alterations

omitted); see also Scialabba v. Cuellar de Osorio, 134 S. Ct. 2191, 2203 (2014) (plurality

opinion).12 The key question on appeal is whether there is such a statutory ambiguity

in INA § 212(h), and if so, whether the BIA reasonably resolved that ambiguity in

finding that someone like Husic, who was admitted to the United States as a

visitor and later adjusted to LPR status, was an “an alien who has previously been

admitted to the United States as an alien lawfully admitted for permanent

residence.” 8 U.S.C. § 1182(h).

We begin with the text of the statute. See, e.g.

, Mizrahi

, 492 F.3d at 158.

Particularly because the definition of the crucial statutory term “admitted” was

enacted at the same time as the § 212(h) limitation, see Illegal Immigration Reform

and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104

‐ 208, Div. C,

§§ 301, 348, 110 Stat. 3009, 3009

‐ 575, 3009

‐ 639, we construe the provisions

consistent with each other, see Envtl. Def. v. Duke Energy Corp.

, 549 U.S. 561, 574

(2006) (discussing general presumption that “the same term has the same

meaning when it occurs here and there in a single statute,” but also noting that

the presumption is not “effectively irrebuttable” (internal quotation marks

omitted)).13 The definitions provided in the INA draw an important distinction between

the phrase “lawfully admitted for permanent residence” and the stand

‐ alone term

“admitted,” and § 212(h) uses both terms. After substituting both definitions into

§ 212(h), the relevant provision can be understood as follows:

No waiver shall be granted under this subsection in the case

of an alien who has previously been [granted “lawful

entry

. . . into the United States after inspection and

authorization by an immigration officer”] as an alien [with

“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,”] if either since the date of such admission the alien

has been convicted of an aggravated felony or the alien has

not lawfully resided continuously in the United States for a

period of not less than 7 years immediately preceding the date

of initiation of proceedings to remove the alien from the

United States.

8 U.S.C. § 1182(h) (quoting id. § 1101(a)(13)(A), (a)(20)). The substitutions make

clear that there are two requirements before an alien is found to be ineligible to

seek a waiver of inadmissibility: (1) that the alien “has previously been admitted

to the United States” and (2) that he or she was admitted with the status of “an

alien lawfully admitted for permanent residence.”

Applying the statutory definitions, we find that Husic is not “an alien who

has previously been admitted to the United States as an alien lawfully admitted14 for permanent residence.” Husic was “admitted” to the United States in 1994 as a

B

‐ 2 visitor upon his lawful entry after inspection and authorization, but attained

the status of being “lawfully admitted for permanent residence” only in 1998 after

he adjusted to LPR status without being “admitted” a second time. Husic was

therefore never “admitted to the United States as an alien lawfully admitted for

permanent residence ,” but rather as only a visitor.

We reach this conclusion for several reasons. First, and contrary to the

government’s position, Husic was not “admitted” when he became an LPR in

1998 through adjustment of status. The IIRIRA expressly defined “[t]he term[]

. . .

‘admitted’ [to] mean, with respect to an alien, the lawful entry of the alien into the

United States after inspection and authorization by an immigration officer.”

IIRIRA, Pub. L. No. 104

‐ 208, Div. C, § 301, 110 Stat. 3009, 3009

‐ 575 (codified at 8

U.S.C. § 1101(a)(13)(A)). An alien is therefore “admitted” upon his or her lawful

entry following inspection and authorization. The statutory definition of the term

“admitted” thus makes no mention of adjustment of status and in fact specifies

that the action that is relevant for admission is “lawful entry.” 8 U.S.C.

§ 1101(a)(13)(A).15 Because Husic had already lawfully entered the United States in 1994 and

was already residing in this country in 1998, there was no “entry” when he

adjusted to LPR status. Adjustment is the change of an alien’s status to “that of an

alien lawfully admitted for permanent residence.” Id. § 1255(a). While adjustment

is available to “an alien who was inspected and admitted or paroled into the United

States or

. . . any other alien having an approved petition for classification as a

[Violence Against Women Act] self

‐ petitioner,” id. (emphasis added), adjustment

is not an act of admission in itself. When an alien has previously entered lawfully

after inspection and authorization, that alien’s admission occurred when he or she

entered lawfully. Adjustment of status simply reflects a change of that alien’s

status, and not another admission. See, e.g.

, Bracamontes

, 675 F.3d at 386–87. Husic

therefore was not “admitted to the United States” when his status was adjusted in

1998.

Second, Husic’s proposed interpretation avoids rendering certain portions

of § 212(h) meaningless surplusage. See, e.g.

, Duncan v. Walker

, 533 U.S. 167, 174

(2001). Interpreting the statute to require only “an alien lawfully admitted for

permanent residence” would deprive of meaning the phrase “admitted to the16 United States as.” After all, if the § 212(h) bar applied to any LPR, it would have

sufficed to require that the alien be “lawfully admitted for permanent residence,”

without any restriction as to how the alien was admitted. Similarly, interpreting

“admitted” to mean admission both through entry as an immigrant and through

adjustment of status would render the term “admitted” surplusage, contrary to

the statutorily provided definition. See Martinez

, 519 F.3d at 546; Lanier

, 631 F.3d

at 1366; see also Stanovsek

, 768 F.3d at 517 (discussing simpler ways in which

Congress might have drafted the statute had it intended that the § 212(h) bar

apply more broadly).

The government recognizes the facial strength of Husic’s textual

arguments. See Roberts

, 745 F.3d at 933 (holding in favor of the government’s

position, but acknowledging that “[r]eading § 1182(h) in isolation, one might

conclude

. . . that the meaning of ‘admitted’ is clear”). The government instead

argues that the structure of the statute as a whole, as well as other specific

provisions, creates ambiguities that require us to look beyond the text of § 212(h)

and the statutory definitions.17 Even though the text of the relevant provision appears unambiguous upon

initial review, we consider the government’s intratextual arguments because the

text of a statute, when taken as a whole, can provide further context for

interpreting a specific provision. See Davis v. Michigan Dep’t of Treasury

, 489 U.S.

803, 809 (1989) (“[T]he words of a statute must be read in their context and with a

view to their place in the overall statutory scheme.”). The government contends

that the BIA should not be bound to the statutorily prescribed definitions of the

relevant terms because the terms “admitted” and “admission” are used

inconsistently throughout the INA.

For example, the government points to the statutory language in 8 U.S.C.

§ 1255(b), which provides that “the Attorney General shall record the alien’s

lawful admission for permanent residence as of the date the order of the Attorney

General approving the application for the adjustment of status is made.” See also

Roberts

, 745 F.3d at 933. The government argues that § 1255 demonstrates that

“admission” need not coincide with lawful entry, but can instead coincide with

approval of an application for adjustment of status. If that is so, the government

argues, then the BIA can reasonably interpret § 212(h) as barring aliens who18 adjusted to LPR status after an initial admission to the United States in a non

‐ LPR

status. But the government’s position overlooks that the term “admission” in

§ 1255 is actually part of a textual phrase, “lawful admission for permanent

residence,” that is virtually identical to the phrase “lawfully admitted for

permanent residence,” which is defined in 8 U.S.C. § 1101(a)(20). Section 1255

therefore uses the term “admission” quite differently than INA § 212(h) uses the

term “admitted” when it appears by itself. As multiple other Circuits have found,

§ 1255 does not create ambiguity and is instead a “ministerial” provision relating

to the date of “lawful admission for permanent residence” for visa

‐ counting

purposes, not to what “admission” itself means. Hanif

, 694 F.3d at 485; 8 U.S.C.

§ 1255(b); see also Martinez

, 519 F.3d at 546; Stanovsek

, 768 F.3d at 518–19.

The government also argues that Husic’s preferred interpretation of

§ 1182(h) may exclude people like Husic entirely from obtaining relief in the form

of adjustment of status. Specifically, § 212(h) permits the Attorney General to

waive the application of various inadmissibility grounds if a “denial of

admission” would result in extreme hardship to the alien’s close relatives in the

United States. 8 U.S.C. § 1182(h)(1)(B). The government asserts that if we adopt19 Husic’s interpretation of “admitted,” an LPR seeking adjustment of status would

not technically be denied “admission” and therefore would not be able to obtain a

§ 212(h) waiver at all as part of an adjustment

‐ of

‐ status application. The

government’s position, whether framed as an invocation to avoid absurd results

or as an intratextual inconsistency, is unpersuasive. Section 212(h)(2) makes clear

that this waiver applies to those seeking adjustment of status, which means that

the “denial of admission” referenced in § 212(h)(1)(B) simply relates to an alien’s

inadmissibility based on the requirements of the remainder of § 212, and not to

the alien’s denial of lawful entry after inspection at a port of entry. See id.

§ 1182(h)(2) (requiring the Attorney General’s consent “to the alien’s applying or

reapplying for a visa, for admission to the United States, or adjustment of status ”

(emphasis added)); see also Negrete

‐ Ramirez

, 741 F.3d at 1056 (Berzon, J.

,

concurring).

After considering the specific statutory provision at issue as well as the

statutory scheme as a whole, we conclude that the statute unambiguously permits

an individual who lawfully entered as a non

‐ LPR and later adjusted to LPR status

to seek a discretionary waiver of inadmissibility pursuant to INA § 212(h).20 Because the statutory text is unambiguous, we need not consider the

government’s arguments based on legislative history or purportedly absurd

results. See, e.g.

, Mizrahi

, 492 F.3d at 158.

We further observe that even if we were to consider the government’s

arguments regarding legislative history and absurd results, those arguments are

not winning ones. The legislative history as to this specific provision is quite

sparse and provides tenuous support for both sides’ positions. For example, the

government’s highly generalized invocations of legislative purpose are based on

scraps of legislative history that have been rejected by other Circuits. See, e.g.

, H.R.

Rep. No. 104

‐ 469, pt. I, at 225–26 (1996); see also, e.g.

, Hanif

, 694 F.3d at 485–86.

Equally unpersuasive are Husic’s attempts to rely on post

‐ enactment legislative

inaction on proposed amendments to the immigration laws following IIRIRA’s

passage. See H.R. 2413, 105th Cong., § 4 (introduced on Sept. 5, 1997). The amici ’s

discussion of the legislative history of IIRIRA is somewhat more reliable and

lends only modest support to Husic’s position. Compare Immigration in the

National Interest Act of 1996, H.R. 2202, 104th Cong., § 301(h) (as passed by

House, Mar. 21, 1996) (indicating that it amends INA § 212(h) to apply the21 aggravated

‐ felony bar to any “immigrant who previously has been admitted to

the United States”), with IIRIRA, Pub. L. No. 104

‐ 208, Div. C, § 348, 110 Stat. 3009,

3009

‐ 639 (1996) (adopting current version of § 212(h) aggravated

‐ felony bar); see

also H.R. Rep. No. 104

‐ 828, at 228 (1996) (Conf. Rep.) (explaining that the final

version of the amendments to INA § 212(h) in IIRIRA were based on

modifications to § 301(h) of H.R. 2202).

Additionally, while it is true that Husic has not identified a specific

congressional motivation for barring only LPRs who lawfully entered as LPRs

from obtaining a discretionary § 212(h) waiver, it is not our job to speculate,

particularly in light of the unambiguous text and the absence of meaningful

legislative history, as to why Congress might have drafted this statutory

provision in the way that it did. We are also not persuaded that it is an absurd

result for Congress to have exempted from the § 212(h) aggravated

‐ felony bar

those who became LPRs through adjustment. The government argues that such

an exemption of aliens who became LPRs through adjustment is absurd because a

large portion of LPRs attain their status through adjustment. But the prevalence of

adjustment as an avenue for LPR status could just as readily show that Congress22 was at least aware of this pathway to LPR status when it enacted this provision in

the way that it did. The prevalence of adjustment therefore does not lend

definitive support to either party’s position.

Having found that the § 212(h) aggravated

‐ felony bar does not apply to

aliens in Husic’s position, we must determine the precise scope of our decision.

At oral argument, the government asserted that we must decide the full scope of

the § 212(h) bar in this case. The government argues that if we rule in Husic’s

favor, we would also need to exempt other LPRs, including those who initially

entered without inspection, from the § 212(h) aggravated

‐ felony bar. According to

the government, the exemption of other types of LPRs from the § 212(h) bar

would produce inconsistent or absurd results in light of other provisions of the

INA.

But we need not delineate the full scope of the § 212(h) bar in this case. We

follow the lead of at least three other Circuits and decline to reach the broader

question of the full scope of § 212(h) waiver because such a decision is not

necessary to address the matter at hand. See Bracamontes

, 675 F.3d at 388;

Stanovsek

, 768 F.3d at 518; Negrete

‐ Ramirez

, 741 F.3d at 1051–53 (majority opinion).23 Instead, we hold only that “Congress has clearly spoken to the question at issue”

in this case

— whether an alien who, like Husic, entered the country lawfully as a

non

‐ LPR and later adjusted to LPR status without making an additional entry is

barred from seeking a discretionary waiver under § 212(h). Mizrahi

, 492 F.3d at

158. We conclude that Husic is unambiguously not “an alien who has previously

been admitted to the United States as an alien lawfully admitted for permanent

residence” and is therefore not barred from seeking a § 212(h) waiver.

Accordingly, we grant Husic’s petition in part, vacate the petitioner’s removal

order to permit his application for a waiver of inadmissibility under § 212(h), and

remand for further proceedings consistent with this Opinion. As in all issues of

statutory interpretation, our charge is to faithfully construe Congress’s words. In

the matter at hand, Congress, of course, is in a position to speak further should it

wish to do so.

II. Husic’s Entitlement to a Continuance to Pursue Post

‐ Conviction Relief

Husic also petitioned for this Court’s review of the IJ and BIA’s decisions to

deny his request for a continuance to pursue post

‐ conviction remedies. At oral

argument, however, Husic’s counsel conceded that this challenge was moot24 because of the amount of time that had passed since the original request for a

continuance. We agree and therefore dismiss this portion of Husic’s petition

because the issues presented are moot.

CONCLUSION

For the foregoing reasons, we GRANT the petition in part, VACATE

Husic’s removal order to permit his application for a waiver of inadmissibility

under § 212(h), DISMISS the remainder of the petition as moot, and REMAND for

further proceedings consistent with this Opinion. Each party shall bear its own

costs on this petition.