IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-60264

GEORGE EDUARD NASTASE, 

 Petitioner,

v.

WILLIAM P. BARR, U. S. ATTORNEY GENERAL, 

 Respondent.

Petitions for Review of the Orders of the

Board of Immigration Appeals

Before ELROD, WILLETT, and OLDHAM, Circuit Judges.

JENNIFER WALKER ELROD, Circuit Judge:

Romanian native George Eduard Nastase petitions for review of the 

Board of Immigration Appeals (BIA) decisions denying his applications for 

adjustment of immigration status and for a waiver of inadmissibility. The first 

petition is DENIED and the second petition is DENIED in part and 

DISMISSED in part for lack of jurisdiction.

I.

Nastase was born in 1985 in Romania. In 1986, he was admitted to the 

United States as a refugee in the care of his parents. After his parents divorced 

eight years later, Nastase lived with his mother and siblings. In 1999, his 

mother became a naturalized citizen.

United States Court of Appeals

Fifth Circuit

FILED

July 1, 2020

Lyle W. Cayce

Clerk

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In 2006, Nastase applied for adjustment of his immigration status under 

8 U.S.C. § 1159(a), which (if granted) would cause him to “be regarded as 

lawfully admitted to the United States for permanent residence as of the date 

of [his] arrival into the United States.” That application was denied in 2012 

on the basis that Nastase’s criminal record rendered him inadmissible. 

Specifically, the United States Citizenship and Immigration Services (USCIS) 

reasoned that his 2007 conviction for delivery of a simulated controlled 

substance made him ineligible for adjustment of status under 8 U.S.C.

§ 1182(a)(2)(C)(i), which states that “[a]ny alien who . . . the Attorney General 

knows or has reason to believe . . . is or has been an illicit trafficker in any 

controlled substance . . . is inadmissible.” Nastase committed miscellaneous 

other crimes in 2012 and the years following: theft, credit card abuse, and 

criminal trespass—all misdemeanors—and felony possession of less than one 

gram of a controlled substance (methamphetamine).

Those crimes landed Nastase in the Dallas County Jail in 2012, where 

he was identified by Department of Homeland Security (“DHS”) agents. DHS 

then instigated removal proceedings against him. Because Nastase was not in 

federal custody at the time, the Immigration Judge (IJ) administratively closed 

the proceedings.

When the removal proceedings restarted in 2017, DHS alleged two bases 

of removability: (1) that Nastase had been “convicted of two or more crimes 

involving moral turpitude” under 8 U.S.C. § 1227(a)(2)(A)(ii), and (2) that he 

had been convicted of a crime “relating to a controlled substance” under 

§ 1227(a)(2)(B)(i). Nastase defended the charges by arguing that he had gained 

derivative United States citizenship when his mother became a citizen. See 8 

U.S.C. § 1431(a). As all this was taking place, Nastase again applied for an 

adjustment of status under § 1159(a). This time, mindful of the denial of his 

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first application on inadmissibility grounds, he also applied for a discretionary 

waiver of inadmissibility under § 1159(c).

The IJ rejected Nastase’s citizenship argument, concluding that his 

admission as a refugee did not meet the derivative citizenship statute’s 

requirement of “lawful admission for permanent residence.” 8 U.S.C. 

§ 1431(a)(3). The IJ also determined that Nastase was inadmissible under 

§ 1182(a)(2)(A)(i)(II) and denied him a waiver after weighing a variety of 

equitable factors and finding that they ultimately weighed against him. Given 

Nastase’s inadmissibility, the IJ denied his application for an adjustment of 

status.

Nastase appealed these determinations to the BIA, which dismissed the 

appeal on essentially the same reasoning provided by the IJ. Nastase 

proceeded to file a petition for review of the BIA’s citizenship decision in this 

court, while simultaneously pursuing a motion for reconsideration of the 

waiver decision at the BIA. When the BIA denied the motion, Nastase filed an 

additional petition for review of that denial. The petitions were consolidated. 

See 8 U.S.C. § 1252(b)(6). We take them in turn.

II.

In his first petition for review, Nastase argues that he is not removable 

because his childhood admission as a refugee was a “lawful admission for 

permanent residence” and he thereby received derivative United States 

citizenship when his mother became a citizen in 1999. We disagree.

A.

We have jurisdiction to review Nastase’s citizenship claim under 

§ 1252(b)(5)(A). See also 8 U.S.C. § 1252(a)(1) (jurisdiction over removal 

orders). The question of whether refugee status equates to “lawful admission 

for permanent residence” (“LPR”) status under the derivative citizenship 

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statute is a legal one that the court reviews de novo. See Bustamante-Barrera 

v. Gonzales, 447 F.3d 388, 393 (5th Cir. 2006).

LPR status is “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.” 8 U.S.C. 

§ 1101(a)(20). The derivative citizenship statute bestows citizenship on 

foreign-born children who meet three requirements:

(1) At least one parent of the child is a citizen of the United States, 

whether by birth or naturalization. (2) The child is under the age 

of eighteen years. (3) The child is residing in the United States in 

the legal and physical custody of the citizen parent pursuant to a 

lawful admission for permanent residence.

8 U.S.C. § 1431(a) (emphasis added). Nastase “has the burden of proving that 

he qualifies for naturalization, and he must do so in the face of the Supreme 

Court’s mandate that we resolve all doubts ‘in favor of the United States and 

against’ those seeking citizenship.” Bustamante-Barrera, 447 F.3d at 394–95 

(quoting Berenyi v. Dist. Dir., I.N.S., 385 U.S. 630, 637 (1967)); see also I.N.S. 

v. Pangilinan, 486 U.S. 875, 884 (1988) (courts considering naturalization 

claims must ensure “strict compliance with the terms of an authorizing 

statute”).

The Fifth Circuit has not decided whether Chevron deference applies to 

the BIA’s interpretation of the derivative citizenship statute. See BustamanteBarrera, 447 F.3d at 393–94 (declining to decide whether Chevron deference 

applies to § 1432, the now-repealed precursor to § 1431). However, the Fifth 

Circuit has concluded that Chevron deference never applies to nonprecedential BIA decisions. See Dhuka v. Holder, 716 F.3d 149, 154–56 (5th 

Cir. 2013). The BIA’s decision in this case has not been designated as 

precedential. A non-precedential BIA decision is given whatever weight is 

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appropriate based on “the thoroughness evident in its consideration, the 

validity of its reasoning, its consistency with earlier and later pronouncements, 

and all those factors which give it power to persuade.” Skidmore v. Swift & 

Co., 323 U.S. 134, 140 (1944); see Dhuka, 716 F.3d at 156. In any event, this 

case does not turn on Chevron deference because our disposition would be the

same whether we applied it or not.

B.

To have met the requirements for derivative citizenship in 1999, as he 

claims, Nastase must have then been “residing in the United States in the legal 

and physical custody of the citizen parent pursuant to a lawful admission for 

permanent residence.”1 8 U.S.C. § 1431(a)(3) (emphasis added). He was not.

Nastase admits that no court in any jurisdiction has ever construed 

refugee status to include LPR status, and that the admission of refugees has 

traditionally been termed “conditional.” Oral Argument at 8:58; see also In re

D-K-, 25 I. & N. Dec. 761, 767–68 (B.I.A. 2012) (discussing “the conditional 

nature of a refugee’s status” and noting that “refugee admission is 

impermanent and subject to contingencies”). Nevertheless, he argues that his 

status as a refugee made him a permanent resident in the sense that he could 

reside in the United States “indefinite[ly] unless and until terminated.” Thus, 

he says, all refugees meet the statutory definition of “permanent”: “The term 

‘permanent’ means a relationship of continuing or lasting nature, as 

distinguished from temporary, but a relationship may be permanent even 

though it is one that may be dissolved eventually at the instance either of the 

1 There does not appear to be any dispute that Nastase met the other requirements of 

the derivative citizenship statute in 1999: his mother became a naturalized United States 

citizen when he was under 18 years old and residing in his mother’s custody on American 

soil.

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United States or of the individual, in accordance with law.” 8 U.S.C. 

§ 1101(a)(31).

This contention is unpersuasive. Even assuming arguendo that 

Nastase’s construal of these definitional statutes “is not inconsistent with the 

language of th[e] provision[s] examined in isolation, statutory language cannot 

be construed in a vacuum.” Davis v. Mich. Dep’t of Treasury, 489 U.S. 803, 809 

(1989). Indeed, “[i]t is a fundamental canon of statutory construction that the 

words of a statute must be read in their context and with a view to their place 

in the overall statutory scheme.” Id.

As the Attorney General points out, the rest of the statutory scheme 

evinces a clear distinction between refugee status and LPR status. Section 

1159(a)(1)(C), for instance, discusses “alien[s] who ha[ve] been admitted to the 

United States” as refugees “who ha[ve] not acquired permanent resident 

status,” a category of persons that would not exist if refugees were already 

LPRs. In fact, that section requires refugees “to apply for adjustment to LPR 

status after being present in the United States for one year” if they have not 

already acquired LPR status. Ali v. Lynch, 814 F.3d 306, 313 (5th Cir. 2016). 

Nastase’s interpretation would render this provision meaningless, violating 

the “principle that when interpreting a statute, it is necessary to give meaning 

to all its words and to render none superfluous.” United States v. Rayo-Valdez, 

302 F.3d 314, 318 (5th Cir. 2002). Section 1159(a) is not the only provision 

that would make little sense if we accepted Nastase’s view. See, e.g., 8 U.S.C. 

§ 1252(e)(4) (referring separately to aliens who are “lawfully admitted for 

permanent residence” and those who are “admitted as a refugee”).

Nastase argues that his reading would not render § 1159(a) superfluous 

because a status adjustment under that section would have the functions of 

“produc[ing] the resident card necessary for international travel, employment 

authorization and other purposes” and catching refugees who have “become 

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inadmissible following their initial admission.” Not so. As we have previously

noted, § 1159(a)(1) expressly excludes refugees who have already “acquired 

permanent resident status” from obtaining adjustment under that subsection. 

See also Ali, 814 F.3d at 313. If refugees were automatically permanent 

residents, § 1159(a)(1) would lack a function. Nastase’s interpretation 

“renders the [statutory provision] mere surplusage, a result that we cannot 

accept.” In re McBryde, 120 F.3d 519, 525 (5th Cir. 1997).

As Nastase admitted in the immigration proceedings, he was only 

“conditionally”—not permanently—“admitted as a [r]efugee.” As a result, he 

has not met the requirements of the derivative citizenship statute. His first 

petition for review is therefore DENIED.2

III.

In his second petition for review, Nastase argues that he was improperly 

denied the waiver of inadmissibility necessary to permit him to adjust to LPR 

status under § 1159(a).3 Some of Nastase’s arguments invite us to review 

decisions outside our jurisdiction. To the extent Nastase makes a reviewable 

challenge, it lacks merit.

2 In his reply brief, Nastase appears to argue that the Government should be equitably 

estopped from removing him because USCIS erroneously denied his earlier application for 

adjustment of status in 2012. He points out that USCIS treated his conviction for delivery 

of a simulated controlled substance as making him inadmissible as “an illicit trafficker in a[] 

controlled substance” under § 1182(a)(2)(C)(i), despite BIA precedent rejecting that 

proposition. See In re Sanchez-Cornejo, 25 I. & N. Dec. 273, 274–75 (B.I.A. 2010) (finding 

that convictions under Texas’s “delivery of a simulated controlled substance” statute do not 

qualify as “illicit trafficking in a controlled substance” under the Immigration and 

Nationality Act). As an initial matter, “[a]n appellant abandons all issues not raised and 

argued in [his] initial brief on appeal.” Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994). 

Moreover, any prejudice accruing to Nastase because of the denial of his original application 

for adjustment of status was cured when he renewed his application during the proceedings 

at issue in this case. His renewed application was denied on different grounds, as explained 

infra.

3 Nastase does not contest that his criminal record makes him inadmissible and thus 

that he cannot be adjusted to LPR status without a waiver.

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A.

The Immigration and Nationality Act permits the Attorney General, in 

his discretion, to waive an alien’s inadmissibility “for humanitarian purposes, 

to assure family unity, or when it is otherwise in the public interest.” 8 U.S.C. 

§ 1159(c); see Jean v. Gonzales, 452 F.3d 392, 397 (5th Cir. 2006) (“The 

Attorney General has broad discretionary authority to grant or deny a 

waiver.”).

In general, we lack jurisdiction to review the Attorney General’s 

discretionary immigration decisions. See Kucana v. Holder, 558 U.S. 233, 245

(2010); 8 U.S.C. § 1252(a)(2)(B)(ii) (proscribing judicial review of “decision[s] 

and action[s] of the Attorney General . . . the authority for which is specified 

under this subchapter to be in [his] discretion”). However, we have jurisdiction 

to review those decisions to the extent the appeal involves “constitutional 

claims or questions of law.” Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1068 

(2020) (quoting 8 U.S.C. § 1252(a)(2)(D)). One such reviewable question is 

whether a BIA decision was made ultra vires. See Jean, 452 F.3d at 396; see 

also City of Arlington v. FCC, 569 U.S. 290, 298 (2013) (an agency acts ultra 

vires when it “go[es] beyond what Congress has permitted it to do”).

The BIA’s denial of a motion for reconsideration is reviewed “under a 

highly deferential abuse-of-discretion standard.” Zhao v. Gonzales, 404 F.3d 

295, 303 (5th Cir. 2005). This means that courts will only disturb such a ruling 

if it is “capricious, racially invidious, utterly without foundation in the 

evidence, or otherwise so irrational that it is arbitrary rather than the result 

of any perceptible rational approach.” Id. (quoting Pritchett v. I.N.S., 993 F.2d 

80, 83 (5th Cir. 1993)).

B.

First, Nastase contends that the BIA acted ultra vires by applying a 

“heightened standard” to his waiver application. He analogizes to our decision 

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in Jean, where we determined that the Attorney General acted within his 

authority in applying a heightened standard to waiver applications from aliens 

who had “engage[d] in violent criminal acts.” 452 F.3d at 397 (quoting In re 

Jean, 23 I. & N. Dec. 373, 384 (B.I.A. 2002)). Because he is not a violent 

criminal, Natase argues, a heightened standard is inappropriate here.

This argument fails because the BIA did not apply a heightened 

standard to Nastase. In Jean, we noted that the Attorney General required 

violent criminals to show that “extraordinary circumstances” supported their 

waiver application—a requirement not imposed on typical applicants. Id.

(quoting In re Jean, 23 I. & N. Dec. at 397). No such requirement was imposed 

on Nastase.4 Instead, the BIA applied the normal standard, “balancing the 

various humanitarian, family unity and public interest considerations 

presented.” See 8 U.S.C. § 1159(c). Nastase does not persuasively explain in 

his briefing why he believes a heightened standard was imposed on him, 

merely stating that the proposition “[t]hat a ‘heightened standard’ has been 

applied to [him] can hardly be denied.” Nastase does cite to his motion to 

reconsider at the BIA, where he compared the equities in his case to the 

equities in other cases and argued that his waiver application “involved less 

grave crimes and presents greater equities” than the applications in those 

other cases.5 Simply put, Nastase’s contention that the BIA should have 

weighed the equities more in his favor does not establish that the BIA applied 

4 Indeed, after explaining the Jean standard for violent and dangerous criminals, the 

IJ found it inapplicable, noting that Nastase “has not committed a ‘violent or dangerous’ 

crime.” The BIA agreed.

5 For instance, Nastase states that he came to this country when he was only one year 

old and has been here for thirty years. He does not speak Romanian, and most of his relatives 

live in the United States. And he allegedly would have become a citizen of the United States 

as a child had his mother known at the time that she needed to submit a status-adjustment 

application for him.

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a heightened standard to his waiver application and thereby acted ultra vires.

Thus, to the extent Nastase’s petition presents the legal issue of whether 

the BIA applied that heightened standard, the petition must be denied. To the 

extent Nastase’s petition presents the issue of whether the BIA should have 

weighed the equities of his case more favorably to him, we are without 

jurisdiction to consider it for the reasons explained infra. Nastase may not—

merely by “phras[ing] his argument in legal terms”—“use[] those terms to cloak 

a request for review of the BIA’s discretionary decision, which is not a question 

of law.” Delgado-Reynua v. Gonzales, 450 F.3d 596, 599–600 (5th Cir. 2006).

Turning now to the second issue he raises in his second petition, Nastase 

argues that the BIA improperly denied his motion for reconsideration when he 

had in fact identified a legal error in its decision: failing to consider factors 

relevant to one of the statutory grounds for a waiver, “humanitarian purposes.” 

See 8 U.S.C. § 1159(c) (permitting the Attorney General to waive 

inadmissibility “for humanitarian purposes, to assure family unity, or when it 

is otherwise in the public interest”). He argues that this error is clear because 

the BIA did not specifically mention certain alleged facts that might weigh in 

his favor on that factor, such as his “young age at the time of his admission” 

and “his inability to speak the language of his native country.”

But whether or not the BIA considered each of the facts Nastase alleged, 

we are without jurisdiction to review its discretionary decision. The statute 

permits the Attorney General to provide a waiver “for humanitarian purposes,” 

but does not require it. As we have held in an analogous context, the 

“conten[tion] that the [Attorney General] did not consider all of the relevant 

factors” in denying discretionary relief “does not involve a constitutional claim

or a question of law; therefore, this court does not have jurisdiction to review 

[the] claim.” Sung v. Keisler, 505 F.3d 372, 377 (5th Cir. 2007); see also Sattani 

v. Holder, 749 F.3d 368, 372 (5th Cir. 2014) (“Petitioners’ claim that the IJ did 

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not properly take into account all the hardship factors merely asks this Court 

to replace the IJ’s evaluation of the evidence with a new outcome, which falls 

squarely within the jurisdictional bar of 8 U.S.C. § 1252(a)(2)(B).”).

The Supreme Court’s recent decision in Guerrero-Lasprilla does nothing 

to change this analysis. In that case, the Supreme Court took up the question 

of how to distinguish reviewable legal issues from unreviewable factual issues. 

See Guerrero-Lasprilla, 140 S. Ct. at 1068. The result was holding that “the 

application of a legal standard to undisputed or established facts” is a 

“question[] of law” under § 1252(a)(2)(D) and is therefore within the 

jurisdictional compass of the federal courts of appeals. Id. Our cases 

disclaiming jurisdiction over the BIA’s decision whether to grant a § 1159(c) 

waiver of inadmissibility are not based on whether that decision is too “factual” 

to be a “question[] of law”—rather, they are based on the simple observation 

that the Attorney General’s power to grant a § 1159(c) waiver is purely 

discretionary. See Jean, 452 F.3d at 396. Because Guerrero-Lasprilla does not 

disturb that precedent, it does not lend support to Nastase’s arguments in this 

petition.6

IV.

For the reasons stated, Nastase’s first petition for review is DENIED. 

His second petition for review is DENIED in part and DISMISSED in part for 

lack of jurisdiction.

6 Even assuming arguendo that Guerrero-Lasprilla did disturb our precedent on a 

claim such as this, Nastase fails to show that the BIA’s decision was “capricious, racially 

invidious, utterly without foundation in the evidence, or otherwise so irrational that it is 

arbitrary rather than the result of any perceptible rational approach.” Zhao, 404 F.3d at 303

(quoting Pritchett, 993 F.2d at 83). There is no indication that the BIA failed to consider 

Nastase’s humanitarian factors in its decision; the BIA expressly stated that its decision

reflected a “balancing” of “the various humanitarian, family unity and public interest 

considerations presented in this matter.”

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