2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-6-2012

Martinez v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 11-2258

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1

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 11-2258

________________

ERASMO ANIBAL MARTINEZ,

Petitioner

v.

ATTORNEY GENERAL OF THE

UNITED STATES,

Respondent

________________

On Petition for Review of a Final Order 

of the Board of Immigration Appeals

Immigration Judge: Honorable Margaret Reichenberg

(No. A042-439-642)

_______________

Argued April 11, 2012

Before: MCKEE, Chief Judge, HARDIMAN, 

and JONES, II,

Circuit Judge * District Judge

(Opinion filed: September 6, 2012)

 * Honorable C. Darnell Jones, II, District Judge for the United 

States District Court for the Eastern District of Pennsylvania, 

sitting by designation.
2

Raquiba Huq

Claudine Langrin

Timothy Block

Shifra Rubin

Melville D. Miller, Jr. 

Whitney Elliott, Esq. [ARGUED]

Legal Services of New Jersey 

100 Metroplex Drive, Suite 402

P.O. Box 1357

Edison, New Jersey 08818-1357

Counsel for Petitioner

Tony West, Esq.

David V. Bernal, Esq.

Stuart S. Nickum. Esq. [ARGUED]

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

____________

OPINION OF THE COURT

____________

JONES, II, District Judge.

Section 212(h) of the Immigration and Nationality Act 

(“INA”) expressly bars from status adjustment a non-citizen

who has “previously been admitted to the United States as an 

alien lawfully admitted for permanent residence” but later is 

convicted of an aggravated felony. 8 U.S.C. § 82(h)(1)(C)(2). 

This appeal presents a question of first impression in this 

Circuit: whether someone who was accorded the designation 

of “lawfully admitted for permanent residence” status upon 

physical entry into the United States, but who in fact did not 

substantively qualify for such designated status, is still barred 

from Section 212(h) relief. We determine that “admission” as 
3

an lawful permanent resident (“LPR”) in Section 212(h) 

refers to a procedurally regular entry, not a substantively 

compliant one. As we conclude here that the prohibition 

holds, we will deny the petition for review.

I. Background

Petitioner Erasmo Anibal Martinez, a native of 

Nicaragua, entered the United States without inspection in 

1985. In October 1989, he married a United States citizen 

(who bore his daughter later that year), and began the process 

of adjusting his status to LPR. On September 15, 1990, 

Martinez was arrested and later charged in a four-count 

indictment before the Superior Court of New Jersey. On 

December 7, 1990, he pleaded guilty to sexual assault under 

N.J. Stat. § 2C:14-2b, admitting that he had touched the 

vaginal area of his then-eight-year-old step-daughter.

In early 1991, after his plea but prior to his sentencing, 

Martinez travelled to Nicaragua to complete the immigrant 

visa application process. The United States consulate in 

Nicaragua approved his application on March 5, 1991. 

Martinez was admitted to the United States as a permanent 

resident the following day. On March 22, 1991, two weeks 

after he obtained permanent resident status, he was sentenced 

to four years in prison. Martinez was released on parole on 

November 9, 1992. 

The Department of Homeland Security (“DHS”) 

initiated removal proceedings against Martinez in August 

2009, and Martinez ultimately conceded that he was 

removable for having been convicted of an aggravated felony 

for sexual abuse of a minor. See 8 U.S.C. §§ 

1227(a)(2)(A)(iii) (setting forth grounds for removability), 

1101(a)(43)(A) (defining aggravated felony). Martinez 

argued, however, that he was eligible for adjustment of status 

under former INA Section 212(c), which waived the bar 

against status adjustment for convicted aggravated felons in 

the case of certain LPRs.1

 1 Waiver under former Section 212(c) required that an alien 

have (1) at least seven years unrelinquished residence in the 

United States; (2) at least five years as an LPR; and (3) not 

 DHS responded that Martinez was 
4

not eligible for a Section 212(c) waiver because he had not in 

fact been “lawfully admitted for permanent residence” (an 

eligibility requirement under Section 212(c)): he had failed to 

disclose his prior arrest and guilty plea on his original 

application for permanent resident status. The Immigration 

Judge (“IJ”) agreed. 

In response, Martinez sought instead to readjust his 

status under INA Section 212(h)(1)(A), which allows for 

adjustment of alien status by the spouse, parent, son or 

daughter of a United States citizen where denial of such 

adjustment would constitute extreme hardship on either the 

alien or the citizen. Section 212(h), however, expressly bars 

from relief a non-citizen who has “previously been admitted 

to the United States as an alien lawfully admitted for 

permanent residence” but “since the date of admission . . . has 

been convicted of an aggravated felony . . . .” 8 U.S.C. § 

1182(h)(1)(C)(2). With some creativity, Martinez argued that 

this bar could not apply to him because he was actually 

inadmissible at the time he was granted LPR status due to his 

failure to disclose his prior arrest and guilty plea at the time 

he entered the United States as an LPR.2

 

served more than five years in prison after final conviction for 

an offense.

2 As the Board of Immigration Appeals points out, Martinez’s 

conviction did not render him deportable under Section 

237(a)(2)(A)(i) of the INA, 8 U.S.C. § 1227(a)(2)(A)(i), 

because the offense resulting in the conviction was committed 

before, rather than after, Martinez began adjusting his status 

in the United States. Appendix for Petitioner (“Pet. App.”) 7a 

(citing Matter of Alyazji, 25 I & N Dec. 397 (BIA 2011)). At 

the very least, however, it was Martinez’s failure to disclose 

his arrest and guilty plea that rendered him inadmissible at the 

time he entered, because of “‘fraud or willfully 

misrepresenting a material fact.’” Hing Sum v. Holder, 602 

F.3d 1092, 1094 n.1 (9th Cir. 2010) (record did not establish 

aggravated felony conviction but did establish arrest for said 

felony) (quoting 8 U.S.C. § 1182(a)(6)(C)(i)); see Mwongera 

v. I.N.S., 187 F.3d 323, 330 (3d Cir. 1999) (“knowledge of the 

falsity of the representation will suffice” to establish 

inadmissibility). As the Board notes, Martinez conceded 

before the IJ that his conviction involved a crime of moral 
5

The IJ rejected Martinez’s argument. While 

substantive satisfaction of LPR status was an underlying 

requirement for Section 212(c) waiver, the IJ found that the 

absence of such satisfaction did not equate to waiver of the 

Section 212(h) bar. Specifically, the IJ held that the Board of 

Immigration Appeals’ (“BIA”) decision in In re AyalaArevalo, 22 I & N Dec. 398 (BIA 1998), controlled and 

Martinez was statutorily ineligible for Section 212(h) relief.

Martinez timely appealed to the BIA, arguing that he 

was eligible for Section 212(c) relief because the IJ erred in 

concluding that Martinez had never been “lawfully admitted 

for permanent residence.” In the alternative, Martinez 

contended that if the BIA determined that he had never been 

“lawfully admitted for permanent residence,” then it should 

find him eligible for a Section 212(h) waiver, thus overruling 

Ayala. 

The BIA remained similarly unpersuaded. According 

to the Board, Martinez was ineligible for 212(c) relief 

because he had “never been lawfully admitted for permanent 

residence,” but he was also ineligible for 212(h) relief: 

“although [Martinez] has never been lawfully admitted for 

permanent residence” in a substantive manner, he had 

“previously been ‘admitted,’ even if that admission has 

subsequently been ‘determined to have been . . . in violation 

of law.’” Pet. App. 8a (quoting Ayala at 401 (ellipsis in the 

original)). The Board concluded that Ayala compelled a 

finding that Martinez’s aggravated felony conviction rendered 

him ineligible for a waiver of inadmissibility under Section 

212(h), and the BIA declined to overturn Ayala. 

Martinez then timely filed a petition for review of the 

Section 212(h) waiver question only, and later moved for a 

 

turpitude; the IJ determined that such acknowledgement 

rendered him inadmissible pursuant to 8 U.S.C. § 

1182(a)(2)(A)(i)(I) (any alien “convicted of, or who admits 

having committed . . . a crime involving moral turpitude . . . is 

inadmissible.”). Pet. App. 7a & n.2. 
6

stay of removal, which was granted.

3

 The Newark 

Immigration Court had jurisdiction under 8 C.F.R. § 

1003.14(a) and the BIA had jurisdiction under 8 C.F.R. §§ 

1003.1(b)(3). As Martinez seeks review of a final order of 

removal, this Court has jurisdiction under 8 U.S.C. § 1252(a).

II. Standard of Review

When, as here, the BIA affirms an IJ’s decision and 

adds analysis of its own, we review both the IJ’s and the 

BIA’s decisions. Dia v. Ashcroft, 353 F.3d 228, 243 (3d Cir. 

2003) (en banc); Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d 

Cir. 2001). We review de novo questions of law, such as the 

proper construction of Section 212(h). Fadiga v. Att’y Gen., 

488 F.3d 142, 153 (3d Cir. 2007). Using all “traditional tools 

of statutory construction,” we must determine “whether 

Congress has directly spoken to the precise question at issue.” 

Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 

U.S. 837, 842, 843 n.9 (1984). “If Congress has done so, 

[our] inquiry is at an end; [we] ‘must give effect to the 

unambiguously expressed intent of Congress.’” FDA v. 

Brown & Williamson Tobacco Corp., 529 U.S. 120, 132 

(2000) (quoting Chevron, 467 U.S. at 843). If, however, the 

statute is “silent or ambiguous with respect to the specific 

issue,” we must assess “whether the agency’s answer is based 

on a permissible construction.” Chevron, 467 U.S. at 843. If 

so, then we must defer to that construction. Id. at 845.

Unsurprisingly, Respondent urges us to apply Chevron 

deference here. Martinez, however, argues on two grounds 

that Chevron does not apply. First, Martinez claims that no 

statutory ambiguity exists, such that Congress clearly 

intended for the Section 212(h) waiver to apply to an 

individual like Martinez. Second, Martinez claims that even 

if such ambiguity does exist, it is for this Court to resolve 

without deference to the BIA’s statutory construction, which 

would be due only if the BIA itself had interpreted Section 

212(h). According to Martinez, in Ayala the BIA explicitly 

 3 While the BIA addressed Martinez’s ineligibility for several 

different waivers of inadmissibility for which Martinez had 

applied, here Martinez appeals only the Section 212(h) waiver 

issue. 
7

found that Section 212(h) “clearly precluded” waiver 

applicants such as himself; thus the BIA did not reach its own 

construction of the statute, and therefore this Court should not 

defer to the BIA’s application of Section 212(h). 

Martinez cites exclusively to caselaw from the D.C. 

Circuit and the Seventh Circuit in support of his argument 

against Chevron deference. See Reply Brief for Petitioner 

(“Pet. Reply”) at 7-8 (citing Arizona v. Thompson, 281 F.3d 

248, 254 (D.C. Cir. 2002); Peter Pan Bus Lines, Inc. v. Fed. 

Motor Carrier Safety Admin., 471 F.3d 1350, 1354 (D.C. Cir. 

2006); Escobar Barraza v. Mukasey, 519 F.3d 388, 391 (7th 

Cir. 2008); U.S. Postal Service v. Postal Regulatory Comm’n, 

640 F.3d 1263, 1268 (D.C. Cir. 2011)). The Third Circuit has 

not yet addressed the question of whether such deference is 

“only appropriate when the agency has exercised its own

judgment, not when it believes that [its] interpretation is 

compelled by Congress.” Thompson, 281 F.3d at 254 

(internal quotation marks and citations omitted) (emphasis in 

original).4

 4 While not necessarily reaching the same ultimate 

conclusions, the Fourth, Fifth, Ninth and Eleventh Circuits 

have declined to accord explicit Chevron deference under 

similar circumstances. See Bracamontes v. Holder, 675 F.3d 

380, 386 (4th Cir. 2012) (“[T]he BIA’s interpretation of 

Section 212(h) in the instant case fails the first prong of the 

Chevron test...the statutory bar to a waiver of inadmissibility 

is not ambiguous with respect to whom it applies.”); Martinez 

v. Mukasey, 519 F.3d 532, 544 (5th Cir. 2008) (“[F]or the § 

212(h) bar to apply: when the alien is granted permission, 

after inspection, to enter the United States, he must then be 

admitted as [a lawful permanent resident]. Accordingly, we 

find no basis for the statutory language's being ambiguous.”); 

Hing Sum, 602 F.3d at 1099 (“We need not resort to 

legislative history because the statute is not ambiguous.”); 

Lanier v. U.S. Att’y Gen., 631 F.3d 1363, 1367 (11th Cir. 

2011); (Based on [Section 212(h)’s] unambiguous text, we 

find that the statutory bar to relief does not apply to those 

persons who . . . adjusted to lawful permanent resident status 

while already living in the United States.”).

 For the reasons set forth below, however, we find 

Section 212(h)’s statutory language free of ambiguity—
8

though not in the manner Martinez champions—and thus we 

need not accord Chevron deference.

III. Analysis

A. Statutory Language

Section 212(h) provides one of the few avenues of 

relief for non-citizens who would otherwise be eligible to 

adjust their immigration status but for certain grounds of 

inadmissibility, such as moral turpitude. In 1996, however, as 

part of a larger immigration reform initiative, Congress 

amended the statute to render fewer LPRs eligible for the 

Section 212(h) waiver on aggravated felonies. See Illegal 

Immigration Reform and Immigrant Responsibility Act of 

1996 (“IIRIRA”), Pub. L. No. 104-208, div. C, §348, 110 

Stat. 3009 (amending 8 U.S.C. §1182(h)). The statute 

currently provides that “[n]o waiver shall be granted under 

this subsection in the case of an alien who has previously 

been admitted to the United States as an alien lawfully 

admitted for permanent residence if . . . since the date of such 

admission the alien has been convicted of an aggravated 

felony . . . .” 8 U.S.C. § 1182(h)(1)(C)(2).5

 5 Prior to the 1996 amendment, the INA assessed status on the 

basis of “entry” as opposed to “admission.” See 8 U.S.C. § 

1101(a)(13) (1994) (defining “entry” as “any coming of an 

alien into the United States, from a foreign port or place or 

from an outlying possession, whether voluntarily or 

otherwise”). Non-citizens who had “entered” the United 

States were processed for deportation; those who had not 

“entered” were sent into exclusion proceedings. Charles 

Gordon, Stanley Mailman & Stephen Yale-Loehr, 1-1 

IMMIGRATION LAW AND PROCEDURE § 1.03(2)(b) (2010). As 

a result, “non-citizens who had entered without inspection 

could take advantage of the greater procedural and 

substantive rights afforded in deportation proceedings,” while 

non-citizens who actually presented themselves to authorities 

for inspection were restrained by “more summary exclusion 

proceedings.” Hing Sum, 602 F. 3d at 1100. To remedy this 

unintended and undesirable consequence, the IIRIRA 

substituted “admission” for “entry,” and replaced deportation 

and exclusion proceedings with the more general “removal” 

proceeding.

 
9

Thus, as our sister court in the Ninth Circuit has 

explained so succinctly, Section 212(h) waivers are “available 

to non-LPRs convicted of aggravated felonies, or non-citizens 

who were convicted of an aggravated felony prior to their 

admission as LPRs, but they are unavailable to non-citizens 

who were convicted of an aggravated felony after their 

admission as LPRs.” Hing Sum, 602 F.3d at 1095 (emphasis 

in original) (citing In re Michel, 21 I & N Dec. 1101, 1104 

(BIA 1998) (en banc) and United States v. Arrieta, 224 F.3d 

1076, 1080-81 & n.2 (9th Cir. 2000)). As outlined above, 

Martinez’s appeal rests on whether, despite his arrest and 

guilty plea prior to adjusting to LPR status, he is eligible to 

seek Section 212(h) relief. As the BIA opinion notes, the IJ 

found that Martinez was “previously admitted . . . as an alien 

lawfully admitted for permanent residence” within the 

meaning of Section 212(h), that he was subsequently 

convicted for an aggravated felony, and that he was therefore 

barred from pursuing Section 212(h) relief. Pet. App. 116a.6

 6 Since the INA’s 1996 amendment, the term “conviction” 

means:

 

Martinez contends, however, that precisely because he 

with respect to an alien, a formal judgment of guilt of 

the alien entered by a court or, if adjudication of guilt 

has been withheld, where (i) a judge or jury has found 

the alien guilty or the alien has entered a plea of guilty 

or nolo contendere or has admitted sufficient facts to 

warrant a finding of guilt, and (ii) the judge has 

ordered some form of punishment, penalty or restraint 

on the alien’s liberty to be imposed. 

8 U.S.C. § 1101(a)(48)(A) (emphasis added). Martinez 

pleaded guilty on December 7, 1990 but was not sentenced 

until March 22, 1991—two weeks after his relevant entry into 

the United States on March 6, 1991. Accordingly, as the BIA 

found, he was not “convicted” of an aggravated felony until 

after his admission. See Pet. App. 6a (citing Perez v. Elwood, 

294 F.3d 552, 562 (3d Cir. 2002) (alien’s “conviction” 

occurred not when he was tried and found guilty by jury but 

on date sentence was imposed))). In any event, Martinez

does not contest that he was “convicted” subsequent to his 

March 1991 admission, despite tendering his guilty plea prior 

to his admission, and thus waives any potential argument on 

that ground.
10

attained LPR status through fraud or misrepresentation, he 

was never lawfully admitted and thus Section 212(h) cannot 

bar his status adjustment now.

B. Application

The INA defines “admitted” as the “lawful entry of the 

alien into the United States after inspection and

authorization by an immigration officer,” 8 U.S.C. § 

1101(a)(13)(A)—in other words, a procedurally 

regular admission into the United States, not 

necessarily a substantively lawful one. The term 

“lawfully admitted for permanent residence,” in turn, 

is defined 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.” 8 

U.S.C. § 1101(a)(20). 

Thus, an alien permitted to enter the United States by 

an immigration officer has been “admitted” even if he did not 

meet the substantive legal requirements for admission at that 

time, although he was not “lawfully admitted for permanent 

residence” under the INA unless he were substantively in 

compliance with those admission requirements. See Emokah 

v. Mukasey, 523 F.3d 110, 118 (2d Cir. 2008) (admission 

obtained by using fraudulent visa still constitutes 

“admission”); Borrego v. Mukasey, 539 F.3d 689, 691-93 

(same); compare to Matter of Koloamatangi, 23 I & N Dec. 

548, 551-52 (BIA 2003) (LPR who obtained status by 

fraudulent marriage to United States citizen was not “lawfully 

admitted”). 

The Third Circuit has previously deferred to the BIA’s 

interpretation that “an alien whose status has been adjusted to 

lawful permanent resident but who is subsequently 

determined in an immigration proceeding to have originally 

been ineligible for that status has not been ‘lawfully admitted 

for permanent residence,’” and that such individuals are

therefore ineligible for waivers of inadmissibility. Gallimore 

v. Att’y Gen., 619 F.3d 216, 224-25 (3d Cir. 2010). However, 

Gallimore concerned interpretation of former Section 212(c) 

of the INA. Like Section 212(h), Section 212(c) employed 
11

the phrase “lawful permanent resident,” but without the 

crucial modifying language of “previously been admitted . . . 

as.” See De La Rosa v. DHS, 489 F.3d 551, 554-55 (2d Cir. 

2007); Savoury v. U.S. Att’y Gen., 449 F.3d 1307, 1317 (11th 

Cir. 2006); Arellano-Garcia v. Gonzales, 429 F.3d 1183, 

1187 (8th Cir. 2005); Monet v. INS, 791 F.2d 752, 753-55 

(9th Cir. 1986); Matter of Longstaff, 716 F.2d 1439, 1441-42 

(5th Cir. 1983). Along the same lines, other circuits have 

isolated Section 212(c)’s “lawfully admitted for permanent 

residence” from the preceding language “previously been 

admitted,” but those cases did not involve interpreting the 

fully expanded modifier: “previously been admitted...as” 

(emphasis added). See Bracamontes, 675 F.3d at 388; Lanier 

v. Att’y Gen., 631 F.3d at 1366; Martinez, 519 F.3d at 546. In 

other words, the Fourth, Fifth and Eleventh Circuits focused 

on the word “lawfully” in defining “admission.” We, on the 

other hand, agree with the Ninth Circuit that the controlling 

phrase here is not “lawfully admitted for permanent 

residence,” but rather the preceding phrase, “previously been 

admitted to the United States . . . as.” Hing Sum, 602 F.3d 

1092, 1097 (distinguishing Martinez).7

Only one federal appellate court has confronted 

precisely the same issue that Martinez now raises. In Hing 

Sum, the petitioner was arrested and allegedly convicted for a 

state law violation three years before being admitted to the 

United States as an LPR. Ten years after his admission, he 

was convicted on federal counterfeiting conspiracy charges, 

and the government commenced removal proceedings based 

on this latter conviction. Like Martinez, Sum sought a waiver 

under Section 212(h), “arguing that he was not subject to the 

bar on § 212(h) relief because he was actually inadmissible at 

the time he obtained LPR status either because of his 1987 

conviction or because of his failure to disclose that conviction 

when he entered as an LPR in 1990.” Id. at 1094 (footnote 

omitted). 

 7 Bracamontes, Lanier, and Martinez are further 

distinguishable from the instant case in that the petitioners in 

those cases were not granted LPR status until they were 

already physically present in the United States. See 

Bracamontes, 675 F.3d at 382; Lanier, 631 F.3d at 1365; 

Martinez, 519 F.3d at 536.
12

Hing Sum, in turn, cites Ayala with approval.8

 In

Ayala, the BIA rejected the petitioner’s argument—identical 

to Martinez’s position here—that the waiver bar did not apply 

to him:

While the language of section 212(h) 

distinguishes those who have been previously 

admitted for permanent residence from those 

who have not . . . , the statute does not, either 

expressly or by implication, distinguish those 

whose admission was lawful and those were 

who were previously admitted for lawful 

permanent residence but are subsequently 

determined to have been admitted in violation 

of the law. To read such a distinction into the 

statute would be arbitrary and capricious.

Ayala, 22 I & N at 401. Indeed, to find otherwise would be to 

focus on the statutory language of “lawfully admitted” to the 

complete exclusion of “previously been admitted 

. . . as.” Id. The Hing Sum court noted that “Ayala’s criminal 

activity at the time of admission did not alter ‘the historical 

fact that, when he entered, it was in the status of a lawful 

permanent resident.’” Hing Sum, 602 F.3d at 1098 (quoting 

Ayala, 22 I & N at 401). According to the Ninth Circuit, 

“[t]he same reasoning applies to Sum.” Hing Sum, 602 F.3d 

at 1098.

We agree and apply that reasoning to Martinez here. 

When the definition of “admitted” is considered in the context 

of the Section 212(h) waiver bar, the statutory imperative to 

define admission in terms of procedural regularity, as 

opposed to substantive satisfaction, is clear. “[P]reviously 

admitted...as

 8 The First, Fourth and Eleventh Circuits have also approved 

of Ayala, albeit in different contexts. See Onwuamaegbu v. 

Gonzales, 470 F.3d 405, 408-09 (1st Cir. 2006); Savoury v. 

U.S. Att’y Gen., 449 F.3d 1307, 1315 (11th Cir. 2006); 

Obioha v. Gonzales, 431 F.3d 400, 409 n.10 (4th Cir. 2005).

an alien lawfully admitted for permanent 

residence” must be read as one phrase; to read the “lawfully 

admitted” portion in isolation would render “previously 
13

admitted as” superfluous. “If Congress intended § 212(h) to 

bar only ‘alien[s] lawfully admitted for permanent residence,’ 

there would be no need to describe those non-citizens as also 

‘previously . . . admitted to the United States.’” Hing Sum, 

602 F.3d at 1097 (quoting Onwuamaegbu v. Gonzales, 470 

F.3d 405, 409 (1st Cir. 2006); citing Romero-Ruiz v. 

Mukasey, 538 F.3d 1057, 1062 (9th Cir. 2008)). 

Additionally, to adopt Martinez’s proposed substantive 

reading of the statute would fly in the face of Section 212(h)’s 

evident intent. “By using the term ‘previously admitted,’ 

rather than (for example) ‘previously and lawfully admitted,’ 

Congress demonstrated that it specifically intended to 

penalize those immigrants who sought and gained LPR status 

only to abuse its benefits.” Onwuamaegbu, 470 F.3d at 409; 

accord Taniguchi v. Schultz, 303 F.3d 950, 958 (9th Cir. 

2002) (finding rational basis for denying Section 212(h) 

waivers to non-citizens convicted of aggravated felony after 

admission as LPRs; because LPRs “enjoy substantial rights 

and privileges not shared by other aliens,” they should be held 

to a “higher standard and level of responsibility than nonLPRs”). Indeed, to conclude otherwise would undermine the 

IIRIRA’s stated purpose. See Bamba v. Riley, 366 F.3d 195, 

202-03 (3d Cir. 2004) (INA “evince[s] a broad Congressional 

intent to expedite the removal of criminal aliens”); Zhang v. 

I.N.S., 274 F.3d 103, 108 (2d Cir. 2001) (“[I]t is beyond cavil 

that one of Congress’s principal goals in enacting IIRIRA was 

to expedite the removal of aliens who have been convicted of 

aggravated felonies.”).9

 9 Martinez, for his part, argues that it is our reading of Section 

212(h) that would lead to “perverse results when applied to 

other federal statutes,” such as legislation relating to an 

alien’s eligibility for public benefits such as food stamps or 

supplemental security income. Brief for Petitioner at 25. 

However, the statutes suggested by Martinez are not part of 

the INA and therefore not administered by the BIA; 

accordingly, the BIA’s construction of Section 212(h)’s 

statutory language is irrelevant as to benefits eligibility. See 8 

U.S.C. §§ 1101-1537; 42 U.S.C. §§ 1381 et seq.; 7 U.S.C. §§ 

2013, 2020. 

 Like the Ninth Circuit, we can 

discern “no reason why Congress would give a pass to non-
14

citizens who had fraudulently obtained LPR status while 

barring from relief non-citizens who had legitimately 

obtained LPR status.” Hing Sum, 602 F.3d at 1097 (citation 

omitted); see United States v. Wilson, 503, U.S. 329, 334 

(1992) (citing United States v. Turkette, 452 U.S. 576, 580 

(1981) (when interpreting statutes, “absurd results are to be 

avoided”)).10 

IV. Conclusion

Section 212(h)’s statutory language, construction, and 

evolution make clear that “admission” and “admitted” refer, 

as in the INA’s definition, to inspection and authorization by 

any immigration officer at the port of entry. See 8 U.S.C. § 

1101(a)(13)(A). As Martinez was admitted following such 

procedures, after failing to disclose his arrest and subsequent 

conviction for an aggravated felony, the Section 212(h) 

waiver bar applies. For these reasons, we deny the petition for 

review.

_______________________________

 10 Despite clearly “absurd results,” other circuits have 

concluded that Congress may have had rational reasons for 

employing statutory language that, in the eyes of those 

circuits, unambiguously excepted aggravated felons convicted 

post-LPR admission from the waiver bar. See Bracamontes, 

675 F.3d at 388; Martinez, 519 F.3d at 545. However, as 

discussed above, those circuits considered the import of the 

phrase “previously been admitted” but not in its complete 

modifying context of “previously been admitted...as.” See 

supra, at 11-12.