[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 14-13234

Non-Argument Calendar

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Agency No. A024-690-603

SHADE MUSIBAU LAWAL, 

Petitioner,

versus

U.S. ATTORNEY GENERAL, 

Respondent.

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Petition for Review of a Decision of the

Board of Immigration Appeals

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(August 24, 2015)

Before TJOFLAT, HULL and ROSENBAUM, Circuit Judges.

PER CURIAM: 

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Shade Lawal, a native and citizen of Nigeria, petitions this court to review 

the final order of the Board of Immigration Appeals (“BIA”) affirming the decision 

of the Immigration Judge (“IJ”) denying his application for a waiver of 

inadmissibility under the Immigration and Nationality Act (“INA”) § 212(h), 

8 U.S.C. § 1182(h), and ordering his removal. In support of his petition, Lawal 

argues that the BIA erred in applying its decision in Matter of Rivas, 26 I. & N. 

Dec. 130 (BIA 2013), which was decided after Lawal’s case had already 

commenced. As Lawal acknowledges, our prior panel precedent in Rivas v. U.S. 

Atty Gen., 765 F.3d 1324 (11th Cir. 2014), forecloses his argument that Matter of 

Rivas was wrongly decided. See Pet’r’s Br. 34 n.12. And if Matter of Rivas does 

in fact apply, Lawal does not contest that his petition must be denied. The only 

question Lawal asks us to address, then, is whether the BIA erred in applying 

Matter of Rivas retroactively. See id. at 22–34. 

I.

 We review legal conclusions de novo. Lin v. U.S. Att’y Gen., 555 F.3d 1310, 

1314 (11th Cir. 2009). We review only the decision of the BIA, except to the 

extent the BIA expressly adopted the opinion of the IJ. Indrawati v. U.S. Att’y 

Gen., 779 F.3d 1284, 1297 (11th Cir. 2015). 

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II.

A.

The government draws our attention to Yu v. U.S. Att’y Gen., 568 F.3d 1328 

(11th Cir. 2009) (per curiam), as supporting the BIA’s retroactive application of 

Matter of Rivas. Yu had applied for automatic refugee status pursuant to INA 

§ 101(a)(42), 8 U.S.C. § 1101(a)(42), during removal proceedings that began in 

October 2003, claiming that the Chinese government would persecute him by 

forcing his wife to undergo sterilization, abortion, or invasive insertion of a 

contraceptive device. Yu, 568 F.3d at 1329. The IJ found that Yu was not credible 

and denied his claims for asylum, withholding of removal, and relief under the 

United Nations Convention Against Torture. Id. The BIA dismissed Yu’s appeal, 

reasoning that, regardless of the credibility finding, the case was governed by the 

intervening precedential decision of Matter of J-S-, 24 I. & N. Dec. 520 (A.G. 

2008).

In Matter of J-S-, the Attorney General directed the BIA “to refer to him,” 8 

C.F.R. § 1003.1(h)(1)(i),

1 the BIA’s decision in a case concerning whether INA 

§ 101(a)(42), enacted in 1996, conferred automatic refugee status on the spouses of 

persons who had been subjected to forced abortion or sterilization pursuant to a 

 1 “[T]he Attorney General retains the authority to review final decisions of the BIA, 

either upon the Attorney General’s initiative or by request.” Farquharson v. U.S. Atty. Gen., 246 

F.3d 1317, 1323 n.7 (11th Cir. 2001).

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foreign government’s population control. 24 I. & N. Dec. at 521. In 1997 and 

2006, the BIA had held that § 101(a)(42) conferred such status on a spouse, but the 

Attorney General had not yet addressed those decisions in an opinion. Id. Based 

on the text, structure, history, and purpose of the statute, the Attorney General 

overruled these prior cases to the extent they held that spouses were entitled to 

automatic refugee status under § 101(a)(42). Id. at 523–36; id. at 537 (“[F]rom 

now on, the Board and Immigration Judges shall cease to apply the per se rule of 

spousal eligibility . . . .” (footnote omitted)). 

Yu argued that the BIA’s retroactive application of Matter of J-S- violated 

his due-process rights and that previous BIA decisions entitled him to automatic 

refugee status. Yu, 568 F.3d at 1330. We noted that the BIA had previously 

interpreted § 101(a)(42) as applying to legally married spouses. Id. at 1330–31. 

Applying Chevron analysis, we held that the language of the statute clearly and 

unambiguously supported the Attorney General’s interpretation, and that even if 

the meaning of the statute was somehow ambiguous, the Attorney General’s 

interpretation was reasonable and therefore entitled to deference. Id. at 1331–33. 

In so doing, we specifically rejected Yu’s contention that the BIA’s decision 

involved an improper retroactive application of Matter of J-S-. Id. at 1333. We 

stated that “[t]he BIA did not retroactively apply a new law but instead applied the 

Attorney General’s determination of what the law had always meant.” 

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Id. (quotation marks omitted). The Attorney General’s ruling in Matter of J-S- did 

not change the law, and the fact that the BIA had previously construed the statute 

differently did not prevent the Attorney General from determining otherwise. The 

BIA properly applied Matter of J-S- to Yu’s case because, once the decision was 

issued, it “became the controlling interpretation of the law and was entitled to full 

retroactive effect in all cases still open on direct review, regardless of whether the 

events predated the Attorney General’s decision.” Id. at 1334. Although the 

decision may have prevented Yu from succeeding in his application, it did not 

impair any vested right, but merely upset his expectations based on prior law. Id. 

B.

We conclude that the BIA did not retroactively apply a new rule of law to 

Lawal’s case. The BIA’s decision in Matter of Rivas was based on amendments to 

INA § 212(h) that took effect in the 1990s, see Matter of Rivas, 26 I. & N. Dec. at 

131, before Lawal was convicted of the relevant crimes, left and returned to the 

United States, or filed his application for waiver of grounds of admissibility. The 

BIA’s decision in Matter of Rivas did not change the law; rather, it clarified what 

the law under § 212(h) had been during the entire timeframe relevant to Lawal’s 

case. Id. at 134–35. Once the BIA issued Matter of Rivas, that interpretation 

became the controlling interpretation of the law and was entitled to full effect in all 

cases still open on direct review, such as Lawal’s. See Yu, 568 F.3d at 1334. 

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Lawal suggests that when we found that the language of the statute in Yu 

was unambiguous, this finding rendered all subsequent discussion dicta because 

automatic refugee status was unavailable even without Matter of J-S-’s retroactive 

application. But we alternatively held that Matter of J-S- was a reasonable 

interpretation of the statute even if it was ambiguous and that its retroactive 

application did not violate due process. See id. at 1333–34. An alternative holding 

is binding precedent. See Hitchcock v. Sec’y, Fla. Dep’t of Corr., 745 F.3d 476, 

484 n.3 (11th Cir. 2014) (collecting cases). 

Accordingly, we deny the petition for review.

PETITION DENIED.

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