Pursuant to Fede ral Rule of A ppellate Proc edure 43(c) (2), Attorne y Gene ral Er ic H. * Holder Jr. is automatically substitut ed for

former Attorney Gene ral Albe rto Gonzales, and Depa rtment of Homela

nd Security

Secre tary J anet Na politano is automatically

substitut ed for former Depa rtment of Homela

nd Security

Secre tary Michae l Chertoff a s responde nts in thi s case . The Honor able Thoma s J . Meskill, the third member of the panel that or igina lly hear d ** this case, pa ssed awa

y afte r we rema

nded to the B oard of

I mmigration Appeals for a pre cede ntial opinion. Therea fter, Judge Newma n was de signated as the third membe r of this pane l pursuant to Second Circuit L ocal Rule § 0.14(b)
. 06-0202-a g Rotim i v. Holder U N IT E D S T A T E S C O U R T O F A P P E A LS
F OR THE S EC OND C IR C U IT

______________ August Term, 2008 (Argued: Marc h 23, 2009 Dec ided: August 14, 2009) Docke t No. 06-0202-a g

______________ F EL I X R OT I MI ,

Petitioner , —v.— E RI C H. H O LDER J R ., A S A TTORN EY G ENERAL OF THE U NI TED S TA TES , D EP AR TMENT OF H OMEL AND S E C UR I TY , J AN E T N AP OL I TANO , S ECRET A RY , D EP A RT M EN T O F H OMEL AND S E C UR I TY , D I S TR I C T D I R EC TOR , N EW Y O RK D I STRI CT , I MMI GR ATI ON AN D C US TO MS E NF OR C EME NT , *

Re sp on de nts .

______________ B e f o r e : F EI N BERG , N EW MAN , and K ATZ MANN , Circuit Judges
. **2 ______________ Petition for reviewof a de cision and orde r of the B oard of I mmigration Appeals (“ BIA”) aff irming the I mmigration J udg e’s c onclusion that Rotim i is statutoril y ineligible f

or a w aiver

of inadmissibil ity

and dismissing Rotimi’s appeal. B eca use we hold that the BIA’s interpr etation of § 212(h) of

the Immigra

tion and Nationality

Act, 8 U.S.C. § 1182(h), is re asonable , the petition for r eview is DEN I ED. J udg e Ne wman conc urs in a sepa rate opinion. J u d ge K at z m an nco n cu rs i na s ep ar at e o p i n i o n , wh i ch i s j o i n edb y J u d ge F ei nb er g.

______________ D A N I EL S HAB AS S ON , Pollack, Pollack, I saac & D eCicco, Esqs., New Y ork, N.Y., for Petitioner
. D I ONE M. E NEA , S p e c i a l A s s i s t an tU n i t e d S t a t e s A t t o r

n e y, for Be nton J . Campbell, United States Attorney for the Easter n District of Ne w York, B rookly n, N.Y., for Re sp on de nts .

______________ P ER C UR I AM : Th is c a se c a lls up on

us to i nte rp re t th e phra se “ lawf ull y re sid e d c on tin

uo us ly” a s it

is used in § 212(h) of

the Immigration and Nationality Act (“ I NA”) , 8 U.S.C. § 1182(h), and a s
a pp lie d o n th e pe nd inga

pp e a l. P e tit ion e r F e lix Rot imi , a lawf ul p e rm ane nt r e sid e nt, c on c e de d in the pr oc e e din g s b e low

that he is r e mov a

ble , b ut h e so ug ht a

wa ive r o f i na dmi ssi bil ity purs ua nt t o § 212(h). The Boa

rd of Immigration Appeals (“ BIA”) deter mined, based on its interpre tation of “lawf ully resided c ontinuously ,” that Rotimi was ineligible f or such r elief. F or the re asons stated be low , w e ho ld t

hat th e B I A’ s inte rp re tatio n o f “ lawf ull y re sid e d c on tin

uo us ly” a s it

is u se d in § 212(h) a

nd applied to Rotimi is reasona ble. We there fore deny

Rotim i’s petition for re view.The B I A cha rac terized this as a denia l of Rotimi ’s asylum application. See I n re Rotimi , 1 24 I . & N . Dec . 567, 568 (B .I .A. 2008) (“ On May 17, 1996, [R otimi’s] asylum application was denied a nd the DHS initiated deportation procee dings a g ainst [hi m] .”). I n fac t, the asylum of fi c e r l a c ke d th e a

uth or ity to d e ny Rot imi ’s a

pp lic a tio n a ft e r R oti mi’ s n on imm ig ra nt v isa expired, see 8 C. F .R. § 2 08 .1 4( b) (2 ) ( 19 95 ), a po int c on c e de d b y

the g ov e rnme nt, seeL etter f rom Dione M. Enea , Special Assistant U.S. Attorney , to Catherine O’ Hag an Wolfe, Clerk of the Court (Mar. 31, 2009) (“Ene a L etter” ), at 2. Thus, the pr oper w ay to char acte rize the asylum office r’s a ction is as a re fer ral. See I n re L-K , 23 I . & N . Dec . 677, 680 n.8 (B .I .A. 2004). 3 B ACKG ROUND The fa cts of this case are g ener ally undisputed. Fe lix Rotim i entere d the United States on J une 7, 1995, as a

B- 2 nonimmigra

nt visit or with permission to remain for six months. He
a pp lie d f or po lit ic a l a sylum

wi th t he fo rm e r Immi g ra

tio n a nd Natur a lizatio n Se rv ic e (“ I NS” ) i n September 1995, pr ior to the expiration of his visi tor’s visa. Pursuant to the re g ulations in effe ct at that time, Rotim i’s application wa s assig ned to an a sylum hearingoffice r for adjudication. See 8 C.F.R. § 208.2(a) (1995). On Ma y 17, 1996, the asylum office c ompleted its review of Rot imi ’s a

pp lic atio n a

nd re fe rr e d it

to a n Immi g ra

tio n Jud g e (“ I J”) fo r a dju dic a tio n in de po rt atio n p ro c e e din g s. 1 In J uly 1996, while his deportation proc eeding s were on-g oing, but a fter the expiration of his visit or’s visa, Rotimi married a United States citizen, who then filed a visa petition to classify Rot imi a s an “ imm e diate re lativ e ” un de r I NA§ 2 01 (b ), 8 U .S. C. § 11 51 (b ). In c on jun c tio n w ith his wife’s pe tition, R otimi fil ed an a pplication for a djustment of status pursuant to I NA § 245, 8 U.S.C. § 1255. The visa petition was appr oved on Nove mber 18, 1996. Rotimi’s applications for a sylum and adjustment of status then re mained pendingbefor e the I J until March 20, 1997, at which time Rotimi withdrew his asy lum application in favor of pursuing adjustment of status. On May 1, 1997, pursuant to ag ency prac tice, the g overnme nt “use[d] its prosecutorial discr etionOnce an orde r to show ca use had be en issued in Rotimi ’s ca se, the I J acquir ed exclusive 2 jurisdiction to adjudicate Rotimi’s application for a djustment of status in deportation proce eding s. Se e In reRo us sis , 1 8 I . & N. De c . 2 56 , 2 57 (B .I .A . 1 98 2) (c iti ng8 C. F .R. § 245.2(a) (1)) . The only

way that the I J could terminate those proce eding s once the y had starte d was upon re quest of the District Dir ector of the I NS. Id. at 258 (c iting 8 C.F.R. § 242.7). T h er e i s a d i s cr ep an cy

re gar d i n g th e d at e o nwh i ch R o t i m i ’s re m o v al p ro ce ed i n gs 3 c o m m e n c e d
. W h e nR o t i m i ’ s c a s e w a s o r i g i n a l l y b e f o r e th e a g e n c y , b o thth e IJ an d th e B IA found that re moval proce eding s started on June 9, 2003, the date on whic h the Notice to Appe ar was issued. On r emand, the B I A stated that the r eleva nt date wa s J une 13, 2003, the date on which the Notice to Appear was filed w ith the I mmigration Court. W e will assume the c orre ct date is June 13, 2003, for purposes of this opini on, althoug h we note that our ana ly sis and conclusion would not cha ng e if the c orre ct date w ere in fac t J une 9, 2003. The I NS was re constituted on Marc h 1, 2003, as the B urea u of Immigration and 4 Cus tom s E nf

or c e me nt a

nd the B ur e a

u o f Unit e d St a te s Ci tize ns hip and I mmi g ratio n Se rv ic e s, both within the Depar

tment of Homeland Sec urity
. See R ashid v. Mukase y , 533 F.3d 127, 129 n.2 (2d Cir. 2008).
4 to terminate [Roti mi’s deportation] procee dings to pe rmit [ him] to proce ed with his application for a djustment of status before the I NS rather than in immigration court.” Resp’ts Br . 6 n.3. 2 The I NS ultim ately

g rante d this application, and Rotimi became a lawful pe rmane nt resident on August 13, 1997. On May 22, 2002, Rotim i was convic ted of attempted criminal possession of a f org ed instrument in the second de g ree , in violation of N.Y. Penal L aw §§ 110.00 a nd 170.25, and he
re c e ive d a

se nte nc e of

fi ve y e ars ’ p ro batio n. In N ov e mbe r 2 00 2, up on his re tur n f ro m a br ie f t ri p abroa d, Rotim i sought a dmission i nto the United States as a r eturninglawful pe rmane nt resident. Be cause Rotim i’s conviction was f or a c rime involving mora l turpitude, his inspection was “def err ed.” T here afte r, on June 13, 2003, the Depa rtment of Homela

nd Security (“D HS”) filed 3 4 a Notice to Appear

with the I mmigration Court charg ing Rotimi with being ina dmissibl e as a n alien who ha d committed a cr ime involving mora l turpitude. See8 U.S.C. § 1182(a)(2) (A)( i)(I ).5

Appea ringbefor e the I J , Rotim i conce ded his remova bility and applied f

or a w aiver

of inadmissibil ity

pursuant to I

NA § 212(h) , 8 U.S.C. § 1182(h) (a “ § 212(h) wa iver” ). Section 212(h), howe ver, pr ovides that a law ful perma nent re sident is not eligible for such a w aiver

if, inte r a lia , “the a lien has not lawfully resided c ontinuously

in the United States for a period of not less than 7 y ear s immediately prec edingthe date of

initiation of procee dings to re move the alien from the United States.” Rotim i argued that he ha d “lawf ully resided c ontinuously ” in the United States for the se ven y ear s immediately prec edingJ une 13, 2003, bec ause he had bee n a nonimmigra

nt visit or, an a

pplicant for a sylum and adjustment of status, and a la wful per manent resident dur ing that period. The I J disag ree d. She explained that although Rotimi had lawfully resided in the United State s f or the six mo nth s f

oll ow ingJune 7, 19 95 , th e date on wh ic h h e e nte re d th e c ountr y a s a
no nimmigra

nt v isi tor , h is l awf

ul r e sid e nc e e nd e d in

De c e mbe r 1 99 5 whe n h is n on imm ig ra nt v isa
e xpir e d. F ur

the rm or e , th e I J state d th a t Ro tim i’ s “ fi lin g [of ] an a pp lic a tio n f

or a sylum in [S eptember ] 1995 di d not ext en[d] his non-immigra nt stay in the United States [after his visa had expired] nor did i t confe r on [Rot imi] any lawfulne ss in his continued residenc e in the United States.” F inally , the I J ruled that Rotimi’s application for a djustment of status “d[i d] not make his overstay ed time in the United States leg al.” The I J there fore conclude d that Rotim i’s lawful
re sid e nc e in t

his c ountr y fo r p ur po se s o f § 21 2( h) be g an o n Augus t 13 , 1 99 7, the date he be c ame a lawf ul permane nt resident, ther eby makinghim statutorily

ineligible f

or a § 212( h) wa iver. Rotim i appea led this decision to the BIA, which a ffirme d the I J in a nonpre cede ntial decision by

a sing le member . The B I A stated that “ [a] period of la wful re sidence is one in which an alien ha s aff

irmatively

been a ccor ded the r ight or privileg e of r esiding here and abide s by the6

rules assoc iated with that rig ht or privileg e.” A lthough the B I A re cog nized that Rot imi had filed his a sylum

a pp lic atio n p ri or

to t he e xpir a tio n o f h is n on imm ig ra nt v isa , it c on c lud e d th a t th is “did not make [Rotim i’s] continued residenc e in this country ‘lawf ul’ in any leg al sense.” Acc ording ly , the B I A held that Rotimi was statutorily ineligible f

or a § 212( h) wa iver. Rotim i filed a pe tition for reviewof the B I A’s dec ision, and this C ourt hea rd ora l argument in the case on Dec ember 11, 2006. There afte r, we g rante d Rotim i’s petition, vacate d the B I A’s dec ision, and remande d the ca se to g ive the B I A an oppor tunity to provide a prec edential inter

pretation of the phrase “lawf ully resided c ontinuously .” See R otimi v. Gonzales , 473 F.3d 55, 58 ( 2d Cir. 2007). In particula r, we explained that in c on str uin g “ lawf

ull y re sid e d c on tin

uo us ly” a s u se d in

§ 2 12 (h ), we wo uld be ne fi t f ro m th e B I A’ s c on sid e ra

tio n o f t he te rm lawf ul— inc lud ingits us e in relation to asy lum seeker s and adjustment applica nts—in other provisions of the I NA and the implementing r egulations, along with Congre ss’s intent in providing for a § 212(h) wa iver. In revie wing the B I A’s def inition of lawful in § 212(h), we wo uld a lso be ne fi t f

ro m an e xplana

tio n o f t he so ur c e of

the de fi nit ion

and ana ly sis as to whethe r an a sylum seeker or an a djustment applicant meets that def inition of “lawf ul.” Id. The pa

nel re tained jurisdiction to decide a ny appea l following r emand. See id. On re mand , th e B I A i ssu e d a pr e c e de nti a l op ini on

in whic h it

int e rp re te d th e phra se “lawf ully resided c ontinuously .” See I n re Rotimi , 24 I . & N . Dec . 567 (B .I .A. 2008). At the outset of its opinion, t he B I A explained that it was not attempting to a dopt “a c omprehe nsive de fi nit ion of thi s st atut or

y langua g e ” be c a

us e an e xpans ive int e rp re tatio n w a s n ot n e c e ssa ry to resolve this par

ticular c ase. See id. at 568, 571. Rather, the BIA addr essed the spe cific que stion of “whether

[R otimi’s] 13 months as an applica nt for adjustment of status and his e arlier (and
ov e rl a pp ing ) t ime a s an a

pp lic ant f or a sylum c ount t ow ard

e sta bli sh ingthat he ha s ‘ lawf ull y7

resided c ontinuously ’ for 7 y ear s befor e his remova l proce eding s were initiated.” Id. at 570. As reque sted, the B I A’s ana ly sis set forth the rationale for its interpr etation of § 212(h)
. As an in iti a l matte r, the B I A a c kn ow le dg e d th a t th e phra se “ lawf ull y re sid e d c on tin

uo us ly” is unique to § 212(h) a

nd that its meaning is ambiguous. See id. at 571. Althoug h it recognized the “ra ng e of possible c onstructions it may be g iven,” the B I A re asoned that beca use “Cong ress ha s used the phra se ‘law fully resided’ in a technic al immigration provision designe d to waive criminal g rounds of inadmissibilit y set forth in the Immigration and Nationality Act[,] . . . the meaningof the phra se nee ds to be derive d in the context of the immi g ration laws.” Id. T h e B IA then identified four

specific source s upon which it relied in construingthe statute. First, the B I A examined the leg islative history of § 212(h) , which provide s in releva nt pa rt that th e “ mana g e rs int e nd that th e pr ov isi on s g ov e rn ingc on tin uo us re sid e nc e se t f

or th i n I NA sec tion 240A as ena cted by this legislation shall be a pplied as we ll for purposes of waiver s under I NA sec tion 212(h).” H.R. Rep. No. 104- 828, at 228 (1996) ( Conf. Rep.). The BIA stated that this hist ory , “while not extensive, lends some support to the proposition that an alien’ s application for

lawful status or other

benef it that might not entail a ‘status’ must ac tually be approve d befor e his or her residenc e in this country will be considere d lawful for section 212(h) purposes.” In re Rotimi , 24 I . & N . Dec . at 572. Second, the B I A looked to I NA § 101(a )(20) , which def ines the phra se “la

wfully admitted for pe rmane nt residenc e” to mea n “the status of ha

ving be en lawf

ully acc orded the privileg e of residingperma

nently in the United States as an immig rant in ac corda nce w ith the immi g ration laws , s uc h s tatus no t ha

vin g c ha ng e d. ” 8 U .S. C. § 11 01 (a )( 20 ). Th e a g e nc y a sse rt e d th a t th is supported the view

that an alien doe s not become a lawful pe rmane nt resident simply by applying8

for that status. See I

n re Rotimi , 24 I . & N . Dec . at 573–74. Third, the B I A re lied on the Me rri am -W e bs te r’ s Co lle gia teDi c tio na ry , which def ines “lawf ul” as “ beingin harmony

with the law” or

“constituted, authorized, or e stablished by the law.” Id. at 574 (interna l quotation marks omitted). From this, the B I A conc luded that for a n alien’s r esidenc e to be law ful, “it must be authorized or in har mony with the law, which r equire s some forma l action beyond a mer e re quest for a uthorization or the exi stence of some impediment to actual phy sical re moval.” Id. Four th, the BIA examined case law, which it conte nded dra ws an important distinction betwee n mere ly

beingan applica

nt for a pr ivilege to remain in this country and ac tually

being g rante d that privileg e. See id. at 574–76. The B I A ac knowledg ed that two of the case s upon which it relied – In re Lok, 1 8 I . & N. De c . 1 01 (B .I .A . 1 98 1) , a nd thi s Co ur t’ s d e c isi on

inTim Lok v . I NS , 681 F.2d 107 ( 2d Cir. 1982) – ana ly zed the “lawf

ul domicile” re quirement of f ormer I NA § 212(c ). I t expl ained, howe ver, that although § 212( h) conta ins no domicile require ment,

based on the long- standing construction of the term “la wful” in the Lok

de c isi on s, we think that there is a distinction to be drawn be tween pe rmitting an a lien’s pr e se nc e in t

his c ountr y fo r a lim ite d p ur

po se and le g a lizin g his or

he r s tay . It is thi s d ist inc tio n th at pr ov ide s th e pr ima ry ba sis fo r o ur

re fu sa l to c ount [Ro tim i’ s] tim e sp e nt a s an a

pp lic ant f or be ne fi ts a s p e ri od s d

ur ingwh ic h h e “ lawf

ull y resided” here for pur

poses of a section 212(h) waiver
. In re Rotimi , 24 I . & N . Dec . at 575–76. In light of the se sourc es, the B I A conc luded that any lawfulne ss associated w ith Rot imi’s residenc e in the United States e nded whe n his nonimm igr ant visa expired in Dec ember 1995. Id. at 577. Fur

thermore , it stated that Rotim i’s “submission of asylum and adjustment applications did not chang e the f

act that his status as a nonimmig rant visitor had e nded. Nor did filing such9

applications g ive [Rot imi] lawful re sidence here , as he w as mere ly an applica

nt for bene fits with, at best, a te mporary

repr ieve while his a

pplications were adjudicate d.” Id. A c c o r d i n g l y , th e B IA
c on c lud e d th at Ro tim i’ s c on tin uo us lawf ul r e sid e nc e be g an o n Augus t 13 , 1 99 7, wh e n h e be c ame a lawf ul permane nt resident, and it held that he was statutorily ineligible f

or a § 212( h) wa iver be c a us e his lawf

ul r e sid e nc e wa s f

ourt e e n mo nth s sh or

t of the re qu ir e d s e ve n y e ars . F oll ow ingthe iss ua

nc e of the B I A’ s o pin ion , Ro tim i f ile d a mot ion fo r t his Court to restore the mandate in this case and c onsider the que stion raised in his initi al petition for re view – whether the B I A er

red by holding that Rotimi had not “lawfully resided c ontinuously ” in the Un ite d St ate s f

or a pe ri od of at le a st s e ve n y e ars imm e diate ly pr e c e din g June 13 , 2 00 3. I t is to this question that we now turn. D I S CUS S I ON Rot imi wa s d e e me d in a dmi ssi ble be c a us e he ha d b e e n c onvic te d o f c omm itt inga c ri me involving mora l turpitude. See8 U.S.C. § 1182(a)(2) (A)( i)(I ). In such circ umstances, the Attorney Gene ral ha s discretion to waive inadmissibil ity wher e, as he re, the alien is the spouse of
a Un ite d St ate s c iti zen , a

nd “ the a lie n’ s d e nia l of

a dmi ssi on

wo uld re su lt i n e xtre me ha

rd sh ip” to that United States citizen spouse. Id. § 1182(h)( 1)(B ). Such a w aiver is not available, howe ver, to an alien “ who has pre viously been a dmitted to the United States as an alien la wfully admitted for pe rmane nt residenc e if . . . the a lien has not lawfully resided c ontinuously

in the United States fo r a pe ri od of no t le ss t ha n 7 y e ars imm e diate ly

pr e c e din g the date of

ini tiatio n o f p ro c e e din g s to
remove the alien f

rom the United States.” Id. § 1182(h). Rotim i’s remova l proce eding s were initiated on J une 13, 2003. Thus, to be e ligible f or a § 2 12 (h ) w a ive r, he mus t ha ve lawf ull y re sid e d c on tin

uo us ly in t he Un ite d St a te s si nc e a t le a st10

June 13 , 1 99 6. Th e re is n o d isp ute tha t Ro tim i la

wf ull y re sid e d in

the Un ite d St a te s a ft e r Augus t 13 , 1 99 7, the date on

wh ic h h e be c ame a

lawf ul p e rm ane nt r e sid e nt. Con se qu e ntl y , o ur ana ly sis focuse s on whether

Rotim i lawfully

resided he re be tween June 13, 1996, and August 13, 1997. In c on sid e ri ngthi s q

ue sti on , w e are g uid e d b y the fa mil iar t wo -s te p a na ly sis se t f

or th i n Chevron U.S.A., I

nc. v. Natural Resource

s DefenseCouncil, Inc. , 467 U.S. 837 (1984). See G &T Terminal Packaging Co. v. U.S. De p’t of Agric. , 4 68 F .3 d 8 6, 95 (2 d Ci r. 20 06 ) ( “ I t is firmly established that we revie w under the Chevron sta

nd ard an a g e nc y ’s bin din g and

g e ne ra lly applicable interpre tation of a statute that it is char g ed with administeringwhen that inter pretation i s ad o p t edi nth e c o urs e o f afo rm al ad j u d i ca t o ry

p ro ce ed i n g. ” ( ci t i n g United States v. Me ad Corp. , 5 33 U. S. 2 18 , 2 30 n. 12 (2 00 1) )) ; se e als o Freem an v. Burlington Broadcasters, Inc. , 204 F.3d 311, 322 ( 2d Cir. 2000). Under the Chevron analy sis, we first ask “ whether Congr ess has direc tly spoken to the pre cise que stion at issue. I f the intent of Cong ress is clea r, that is the end of the matte r; fo r t

he c ourt , a s w e ll a s th e a g e nc y , mu st g ive e ff e c t to the un ambi g uo us ly expressed intent of Cong ress.” Chevron , 467 U.S. at 842–43. I f, howe ver, “ the statute is silent or ambiguous with respec t to the specific issue, the question for the c ourt is whether the ag ency ’s
answe r is based on a

permissible construc tion of the statute.” Id. at 843. We “nee d not conclude that the ag ency

construction wa s the only one it permissibly

could have adopted to uphold the construction, or e ven the r eadingthe cour t would have r eac hed if the que stion ini tially had ar isen in a judicial proc eeding .” Id. at 843 n.11. Rather, the Court will defer to the a g ency ’s interpre tation as long as that interpr etation is “‘r easona ble.’” Cohen v. J

P Morgan Chase &Co. , 4 9 8 F. 3 d 1 1 1 , 1 1 6 (2 d

C i r. 2 0 0 7 ) ( qu o t i n g Chevron , 467 U.S. at 844). The fir st step of the Chevron analy sis is st raightforwa rd her e. Cong ress ha s not definedWe note that the B I A did not attempt to craf t an interpre tation of “law fully resided 5 continuously ” that would apply to all case s in which questions about the lawf ulness of an a lien’s residenc e mig ht arise. See I n re Rotimi , 24 I . & N . Dec . at 568, 571. Thus, we ne ed not consider wh e the r a lawf ul s tatus mig ht b e a c c or de d a n a lie n if he or sh e a pp lie d f or a lawf ul s tatus e arl y

in a substantial per iod of some other la wful status, for e x ample, thre e months into a two y ear period 11 the phra se “ lawf

ull y re sid e d c on tin

uo us ly” any

wh e re in t he I NA . G ive n th e ra

ng e of po ssi ble interpre tations that might apply to it, we ag ree with the BI A that this phrase is ambiguous. See I n re Rotimi , 2 4 I . & N. De c . a t 57 1; se e als o Quinchia v. U.S. A ttorney Ge n. , 552 F.3d 1255, 1259 (1 1th Cir . 2 00 8) (“ [W]e f

ind that th e ‘l awf

ull y re sid e d c on tin

uo us ly ’ r e qu ir e me nt i n 2 12 (h ) i s
ambi g uo us ” ); Y

epez-Razo v. Gonzales , 445 F.3d 1216, 1218 ( 9th Cir. 2006) (“We obser ve at the outset that the prec ise meaningof ‘law fully resided c ontinuously ’ in section 212(h) is unclear ”). We theref ore pr ocee d to the second step of the Chevron ana ly sis
. The B I A conc luded that Rotimi “did not ‘lawf ully ’ re side in the United States during those periods in which he was a n applicant f

or asy lum or for a djustment of status and lacke d any other ba sis for claiminglawful re sidence .” In re Rotimi , 2 4 I . & N. De c . at 56 8; see also id. at 574 (“The lawfulne ss of an a lien’s re sidence stems from the g rant of a specific privileg e to stay in this country , not the mere fac t that he or she is a n applicant f

or such a privileg e.”) . The Chevron fra

mework sha

rply constrains this Court. As noted above , even if we would have interpre ted the statute diff ere ntly if the question had a

risen first in a judicia l proce eding , we a re wi tho ut a uth or ity to s ub sti tut e that inte rp re tatio n f or an a g e nc y ’s , if

the a g e nc y ’s vie w i s
rea sonable. Give n the circ umstances of this case, we hold that the BIA’s interpr etation of § 212(h) is re asonable and ther efor e def er to it. Se e Qu inc hia , 5 5 2 F
. 3 d a t1 2 5 9
. C o n s e qu e n t l y, Rotim i is ineligible for

a § 212(h) waiver

beca use he did not lawf

ully reside c ontinuously

in the United States for the period be tween June 13, 1996, and August 13, 1997. 5for whic h an employ ment visa was issued, a

nd the B I A inexcusably

postponed dec ision on the a pp lic atio n unti l a ft e r t

he e xpir atio n o f t

he ini tia l la

wf ul s tatus
. 12 C ONCL US I ON For the fore g oing r easons, Rotimi’s petition for review is DENI ED.See Congressional Research Service , P rivate Immigration 1 Legislation (Aug. 9, 2005), available at http://www.ilw.com/immigdaily/news/2005,0819-crs.pdf (last visited June 16, 2009). Rotimi v. Holder Docket No. 06-0202 JON O. NEWMAN, Circuit Judge, concurring: I concur in the Court’s opinion and judgment, but add these brief additional thoughts. Rotimi’s case is not an unsympathetic one. He entered the country lawfully (although that lawfulness has long since expired), he has been here now for 14 years, he is married to a United States citizen, and the basis for his removal, a conviction for forgery in the se c o n d degree, seems rather minor in significance. Perhaps h e i s a candidate for a private bill. Or perhaps the 1 Government, wholly apart from the statutory waiver p r o v i sion of section 212(h), might simply exercise its discretion to permit Rotimi to remain here along with the millions of others who are not removed despite their lack of a lawful status, some of whom are still here ten or more years after a removal order. See, e.g., C h i o n Yin Kong v. Holder, No. 08-5277, 2009 WL 1635783 (2d Cir. June 11, 2009) (adjudicating denial of p e tition to reopen filed twelve years after issuance of removal order); Khatun v. Filip, No. 08-0493, 2009 WL 180297 (2d Cir. Jan. 2 7 , 2 0 09) (same, ten years); Bao Li Xu v. Mukasey, No. 07-3974, 2008 WL 199499 1 (2d Cir. May 7, 2008) (same, twelve years). Whether or not the political branches can or will permit Rotimi-2-

to remain in this cou n try, the judicial branch has no authority to render him eligib l e f o r section 212(h) relief by rejecting the reasonable statutory interpretation that the BIA made in this case when it concluded that the intervals in which his two applications for lawful status were pending did not count toward lawful residence.06-0202-a g

Rotim i v. Holder KATZ MANN, Circuit Judge , with whom FEI NB ERG, Circuit Judge , j o i n s , co n cu rr i n g: Iag ree with the Court that the Chevron doctrine r equire s us to defer to the BIA’s interpre tation so long a s it is reasonable, e ven if that interpr etation is not “the re adingthe cour t would have r eac hed if the que stion ini tially had ar isen in a judicial proc eeding .” Chevron U.S.A., Inc. v . Natural Res. Def. Council, Inc. , 467 U.S. 837, 843 n.11 (1984). Writing on a clea n slate, I would have inter

prete d “lawf

ully resided c ontinuously ” to include the pe riod betwe en June 13, 1996, and August 13, 1997, when Rotimi resided in the United States while his applications for asylum and (later) adjustment of status we re pe nding. I ndeed, a s Idiscuss below, in the nar row circ umstances of

this case – ( 1) Rotimi fil ed an a pplication for law ful status while residingin the United States in a lawf

ul status; (2) he neve r wa s subject to a depor tation order at any

time prior to the completion of the a dminist rative pr ocee dings that followed the submission of that application; and ( 3) the immigr ation authorities ultimately g rante d Rotim i lawful per manent
re sid e nt s tatus at th e c on c lus ion of tho se a dmi nis tr a tiv e pr oc e e din g s – Ibe lie ve the mos t se ns ibl e conclusion would be f

or Rotimi t o be statutorily elig ible for a

§ 212(h) wa iver. Th e B I A c on c lud e d th at Ro tim i’ s r e sid e nc e in t he Un ite d St a te s d

ur ing the re le va

nt t ime period – June 1996 to August 1997 – wa s not “lawful” beca use it did not stem from the g rant of a sp e c if ic pr ivi le g e to b e he re . Rathe r, a c c or din g to t he B I A, Rot imi ’s c on tin

ue d r e sid e nc e in t

his country afte r his nonimmigra

nt visa expi red in De cembe r 1995 mere ly ref lected the g overnme nt’s indulge nce of his presenc e pendingthe adjudica tion of his applications for a sylum and adjustment of status. The ag ency explained that the distinction between be ing a n applicant for c erta in privileg es and be ing grante d those privileg es wa s the “primar y basis” for

its decision2

and wa s d e ri ve d f

ro m In re Lok, 18 I . & N . Dec . 101 (B .I .A. 1981), a nd Tim Lok

v . I NS , 681 F.2d 107 (2d Cir. 1982). Howe ver, I believe that the circ umstances in Tim Lok differ ed in one signific ant re spect fr om the circ umstances of this case. In Tim Lok , althoug h the alien e ntere d the country lawfully , he over stay ed his visa and was ordered deported
. See Tim Lok, 681 F.2d at 11 0; se e als o Ti m Lo k

v . I NS , 548 F.2d 37, 38 ( 2d Cir. 1977). Ther eaf ter, the g overnme nt did not enfor ce that order be cause L ok beg an to pursue a venues of relief that, if g rante d, would have permitted him to stay

in the country . L ok’s continued pr esenc e in the United States ther efor e truly ref lected the g overnme nt’s g rac e bec ause the g overnme nt could have de ported L ok at any time. By

contra st, Roti mi was neve r subject to a de portation order at any time betwee n when he lawfully enter ed the c ountry

and whe n he bec ame a

lawful pe rmane nt resident. Thus, he continued to re side in the United States af ter his nonimmigra

nt visa expi red be cause the imm ig ratio n a

uth or iti e s could not

deport him. See, e .g. , 8 U.S.C. § 1252 (1996) (providingthe pr oc e ss f or de po rt inga lie ns ); L e tte r f ro m D ion e M. En e a , Sp e c ia l A ssi sta nt U .S. Attor

ne y , to Catherine O ’Ha g an Wolfe, Clerk of the Court (Mar. 31, 2009) , at 2 (c hara cter izi ng a fina l order of depor tation as “a

prer equisite to the remova l of any alien”) . In other wor ds, Rotim i’s continued re sidence was not a r efle ction of the g overnme nt’s mere toleranc e of his pre sence but rathe r wa s attributable to the fa ct that the immigr ation ag ency was leg ally

barr ed fr om deporting him. Consequently , althoug h the Tim Lok decisions dra

w the distinction betwee n beingan applicant f

or a pr ivilege or bene fit and beingg rante d that privileg e or be nefit, those dec isions do not appea r to support the application of that distinction i n the circ umstances of this case. Give n that th is d ist inc tio n s e rv e d a s th e “ pr ima ry ba sis ” fo r t

he B I A’ s d e c isi on

in t his c a se , I fi nd it3

troubling that the BIA did not adequately explain why

this differe nce in c ircumstance s was unimportant. F urth e r m o r e , I d o n o tb e l i e v e th a tan y o f th e o th e r s o ur c e s r e l i e d

u p o nb y th e B IA adequately

explain why , in the circ umstances pr esente d here , lawful re sidence follows only from the g rant of a

specific privileg e to re main in the country . As an initial matter, the sc ant leg islative history

of § 212(h) offe rs no insight into cong ressional intent. More over, the dictionary definition of “law ful” doe s not support the BIA’s interpr etation wher e, as he re, the alien’s pr esenc e is in fac t “authorized or in har mony with the law.” Finally , althoug h the ag ency relied on United States v. Oc hoa-Colchado , 521 F.3d 1292 (1 0th Cir . 2 00 8) , to su

pp or t th e pr op os iti on

that th e “ lawf

uln e ss o f a

n a lie n’ s r e sid e nc e ste ms from the grant of a

specific privileg e to stay

in this country , not [ from] the mere f act that [the alien] is an applicant for

such a pr ivilege ,” In re Rotimi , 24 I . & N . Dec . at 574, that ca se, unlike thi s o ne , invo lve d a

n a lie n w ho wa s in

the c ountr

y ill e g a lly wh e n h e a

pp lie d f or the pr ivi le g e to
rema in. See O choa-Colchado , 5 21 F .3 d at 12 93 . Ind e e d, g ive n th a t di ff e re nc e in c ir c ums tanc e s, it a pp e ars that Ochoa- Colchado counsels ag ainst the interpre tation of § 212(h) r ender ed by the BIA in this case. In Ochoa- Colchado , the Tenth Circuit held that a n alien wa s not leg ally

or lawf ully in the United States for pur

poses of 18 U.S.C. § 922(g )(5) (A) simply beca use he ha d a pending application for

adjustment of status. See521 F.3d at 1298. I n explaining why , the cour t relied
on Un ite d S

tates v . Lu c io , 4 28 F .3 d 5 19 , 5 25 (5 th C ir . 2 00 5) , a c a se in whic h th e F if

th C ir c uit char acte rized “the status of a n alien whose application is pendingas a sor t of ‘stasis.’” See Ochoa- Colchado , 521 F.2d at 1298 (noting that this was “as g ood a desc ription as can be found4

in any case ”). Under this re asoning , the outcome in Ochoa- Colchado logic ally followed fr om the circ umstances pr esente d – the illeg al alien’ s status would remain in “stasis,” i.e. , w ou ld r e ma in unlawful, while his application was pending . By contra st, in thi s case , wher e Rotimi’s residence
and status we re lawf

ul at th e tim e his a dmi nis tr a tiv e pr oc e e din g s c omm e nc e d, the “ sta sis ”
a pp ro a c h w ou ld s ug g e st that hi s r e sid e nc e and status wo uld

re ma in l awf

ul p e nd ingthe outc ome of those proc eeding s. Although I express no view as to whe ther the status of a n alien with a pendingapplication re mains in stasis, Ibelieve that the absenc e of a n explanation by

the B I A as to why the “ sta sis ” a

pp ro a c h d oe s n ot u

nd e rm ine its c on c lus ion

in t his c a se c e rt a inl y

c a lls int o question its reliance on Ochoa- Colchado
. Up on c los e ana ly sis , it

a pp e ars that w hat dr ov e the B I A’ s inte rp re tatio n o f § 21 2( h) in t his
case was its conce rn that, we re la wful re sidence to exi st merely beca use there was some leg al impediment to an alien’s r emoval, then “ the vast majority of aliens in the United States who are entitled to a re moval hear ing a nd the associated appe al rig hts could claim lawful r esidenc e base d on a combination of phy sical pre sence and some ba rrier to removal.” In re Rotimi , 24 I . & N
. De c . at 57 3. Al tho ug h it

is i mpo rt ant t o b e se ns iti ve to t his c on c e rn , I

am no t sure tha

t it is
war rante d in the narr ow circ umstances of this case, whe re the alien filed his asy lum application while re siding in the United States in a la wful status and ultimately was g rante d lawful perma nent re sident status at the conc lusion of the administrative proc eeding s that followed. I
wo uld a lso no te that to c on c lud e that Ro tim i is statut or ily e lig ibl e fo r a

§ 2 12 (h ) w a ive r w ou ld not call into question the Attorney Gene ral’s a

bility to exercise his or her

discretion to either g rant or de ny

an application for a § 212( h) wa iver on re mand. Moreove r, the B I A’s disreg ard of these c ircumstance s – where the alien f iled his asylum5

application while r esiding in a lawf ul status in the United States and ultimately was g rante d lawf ul p e rm ane nt r e sid e nt s tatus – c ou ld l e a d to an unr e a so na ble int e rp re tatio n o f “ lawf ull y resided c ontinuously ” bec ause that interpretation could result in absurd and unjust conse quence s. See E hrlich v. Am. Airlines, Inc

. , 3 60 F .3 d 3 66 , 3 86 (2 d Ci r. 20 04 ) ( “ ‘Ac on str uc tio n o f a

statut e leadingto unjust or absurd conse quence s should be avoided.’ ” (a lteration omitted) (quoting Qu inn v . B utz , 510 F.2d 743, 753 ( D.C. Cir. 1975))); se e als o Troll Co. v. Unee da Doll Co. , 483 F.3d 150, 160 ( 2d Cir. 2007) (“[I ]t is an eleme ntal principle of statutory construction that an ambig uous statute must be construed to avoid absurd re sults.”). In construing§ 212(h), the B I A explained that an alien’ s status at the time he or she files an application for a pr ivilege or bene fit is irreleva nt to the analy sis because the alien’ s residenc e is not lawful if he or she is merely an applicant

fo r a pr ivi le g e or

be ne fi t. I

t f oll ow s f ro m th is, howeve r, that whe re, a s here , an alien f iles an application while in a lawful status, the a lien’s
e lig ibi lity fo r a § 2 12 (h ) w a ive r m ig ht t

ur n o n h owqu ic kly

the imm ig ra

tio n a uth or iti e s a dju dic a te that application. F or example, if the ag ency g rante d the applica

tion prior to the expiration of the alien’s law ful status, then the alien later mig ht be elig ible for a § 212(h) wa iver. I f, howe ver, the
a g e nc y g ra nte d th e a pp lic atio n a ft e r t

he a lie n’ s la

wf ul s tatus ha d e xpir e d, the n th e a lie n w ou ld not be elig ible for suc h a wa iver. This is prec isely the ty pe of a bsurd and unjust conseque nce that should be avoided when interpr eting statutes. Cf. L ockhart v . Napolit ano , 561 F.3d 611, 620–21 (6th Cir. 2009) (re

jectingan interpr etation of the “ immediate re lative” pr ovision of the I NA wher e “e ither the timing of the Secr etar

y ’s adjudication of the [im mediate r elative] petition or the timing of the c itiz en-spouse ’s death would control the outcome of immediate re lative petitions,” beca use such a

n interpre tation would lead to an a bsurd and unjust result).Although the rec ord does not per mit me to confirm this, Isuspect that the g overnme nt 1 play ed a sig nificant role in Roti mi’s decision to withdraw his asy lum application in favor of purs uin ga dju stm e nt o f s tatus . I dr aw t his c on c lus ion

ba se d o n th e fa c t th a t ( 1) Rot imi abandone d his asylum claim in March 1997 a fter his a sylum application had bee n pendingfor ap p ro x i m at el y

ei gh t ee nm o n th s , (2 ) t h e a gen cy s o u gh tt o t erm i n at e h i s d ep o rt at i o np ro ce ed i n gs within approxi mately

forty day s after

he withdre w his asylum application, and (3) the ag ency g rante d Rotim i’s adjustment application less than four months after that. 6 That said, Rotimi does not quit e pre sent such cir cumstance s, beca use the a pplication that the a g e nc y

ult imate ly

g ra nte d – his a dju stm e nt o f s tatus a pp lic a tio n –

wa s f ile d a ft e r h is
no nimmigra

nt v isa ha d e xpir e d. In li g ht o f t his , I re tur n to the c or e iss ue pr e se nte d b y thi s c a se 1 – whether Chevron require s the court to def er to the B I A’s interpr etation of “ lawfully resided
c on tin uo us ly .” Al tho ug h I

re sp e c tf ull y dis a g re e wi th t

he a g e nc y , a

nd Iwo uld int e rp re t th e statut e differ ently

wer e I called on to do so in the fir st instance, I cannot sa y that the B I A’s interpr etation in the case befor e us is unrea sonable. See Chevron , 467 U.S. at 844. Consequently , Iconclude that Imust defer

to the ag ency ’s interpre tation of § 212(h). I n doing so, I

urg e the immigr ation
a g e nc y to r e c on sid e r i ts i nte rp re tatio n o f t he statut or

y sc he me . Co ng re ss, fo r i ts p art , ma y wi sh to give further

direc tion of the phrase “lawf ully resided c ontinuously

in the United States” a s used in § 212(h) of

the Immigration and Nationality Act, 8 U.S.C. § 1182(h).