PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 21

- 1490

______________

JARVIN ORLANDO LOPEZ,

Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA

______________

On Petition for Review of a n Order of the Board of

Immigration Appeals ( No. A094

- 481

- 777 ) Immigration Judge: Walter Durling

______________

Argued J anuary 26 , 202 2

Before: CHAGARES

, Chief Judge

, M c KEE and MATEY

,

Circuit Judges

.

(Filed: September 9, 2022 )2 Sandra L. Greene [Argued] Greene Fitzgerald Advocates and Consultants

2575 Eastern Boulevard

Suite 208 York, PA 17402 Counsel for Petitioner

Brian M. Boynton James A. Hurley [Argued]

Anna E. Juarez United States Department of Justice

Office of Immigration Litigation

Room 5009

P.O. Box 878

Ben Franklin Station Washington, DC 20044 Counsel for Respondent

______________

OPINION OF THE COURT

______________

MATEY, Circuit Judge

.

Jarvin Lopez hopes to avoid deportation under § 203(b)

of the Nicaraguan Adjustment and Central American Relief Act ( “ NACARA”) , b ut he cannot meet the standard NACARA applies t o applicants removeable for certain drug offenses

. So

he asks for a waiver of NACARA’s requirements under § 212(h) of the Immigration and Nati onality Act (“ INA ”)

, which applies to applications for adjustment of status

. But § 212(h) is inapplicable because a n application for NACARA3 cancellation of removal is not an application for adjustment of

status under the best reading of the INA. So we will deny Lopez’s petition for review.

I.

A. The Statutes

A bit of background frames this controversy, so we begin with a short history of the INA and NACARA

. Enacted in 1952, the INA governs noncitizens’ entrance into and

removal from the U nited States

. Se e 8 U.S. C. § § 1101

– 1537

. Among other mechanisms, t he INA allows admissible aliens to apply for “adjustment of status” to “ an alien lawful ly admitted

for permanent residen ce .” 8 U.S.C. § 1255. But it make s aliens

inadmissible for various reasons

, including for committing an enumerated criminal offense

, 8 U.S.C. § 1 182 ( a )(2) , and provide s for their removal, 8 U.S.C. § 1229a. INA § 212(h)

, in

turn, gives the Attorney General discretion to grant a waive r of inadmissibility for applicant s who meet the eligibility requirements

. 8 U.S.C. § 1182(h).

NACARA came later

, creat ing special eligibility

standards for suspension or cancellation of removal for certain Salvadorans, Guatemalans, and Nicaraguans . NACARA §§ 20 2 , 2 03 , Pub. L. No. 105

- 100, tit. II, 111 Stat. 21 60 (1997), amended by Pub. L. No. 105

- 139, 111 Stat. 2644 (1997)

. NACARA lets the Attorney General adjust the status of some otherwise

- inadmissible aliens to “lawful ly admitted for
permanent r esiden ce , ” a llowing them to remain in the United

States. NACARA § 203(b). But Congress cabined his

discretion by imposing stricter standards for applicants who

have commit ted an offense that the INA lists as a ground for inadmissibility

. Id.4 This case asks whether alien s subject to these stricter

standards for NACARA cancellation of removal can use an INA § 212(h) waiver to relax them again. We conclude that they can not.

B. Jarvin Lopez’s Story

Lopez is a citizen of El Salvador who entered the United

States without authorization in 2001

. He conceded removability when the Department of Homeland Security (“ DHS ”) initiated removal in 2009 , but he applied for relief

under NACARA. W hile removal proceedings continued

, Lopez was charged with possession of marijuana

. Following a guilty plea in 2015 , DHS added a charge of remova bility under the INA, 8 U.S.C. § 1182 (a)(2 )(A)(i)(II)

, applicable to alien s who committed a controlled substance offense

. That trigger ed

a limiting provision in NACARA that bump s the requir ement of continuous presence in the United States from seven to ten years, and restarts the clock from commission of the controlled

substance offense. NACARA § 203(b )

. Lopez agrees that his 2015 drug conviction makes him ineligible for relief under

NACARA . So he look ed to the waiver provision in INA § 212(h) to excuse th at added charge

.

On a second look

, 1 the B oard of I mmigration A ppeals (“BIA”) denied Lopez relief, holding that a § 212 (h) waiver

1 After Lopez’s request under NACARA was denied

, we remanded to the BIA to consider t he “interplay among NACARA, [ § ] 212(h) waiver, the related regulations

, and the reasoning of Matter of Y

- N

- P

- [, 26 I. & N. Dec. 10 (BIA 2012) (holding that § 212(h) waivers are not available concurrently with applicati ons for cancellation of removal and adjustment of status brought under INA § 240A’s general cancellation of5 may not be used with an application for NACARA cancellation of removal. Lopez filed th is petition for review and

, reading the law as the BIA did, we will d eny the petition

. 2

II.

Lopez argues that the BIA misinterpreted the interplay

between NACARA and § 212(h) waiver

, a question of law we consider de novo

. Myrie v

. At t’y Gen ., 855 F.3d 509, 515 (3d Cir. 2017)

. 3 To determine the best ordinary meaning

, we start with the older of the two provisions, INA § 212(h) , before asking how the later

- enacted NACARA § 203 (b) alters that

text

. At least as to waivers, it does not.

removal provisions)]

. . . and to articulate the reasoning underlying its decision.” Lopez v

. At t’y Gen. , 757 F. App’x 163, 167 (3d Cir. 2018). T he BIA f ollowed th at order in a

detailed decision , and we see no grounds for Lopez’s claim of insufficient process.

2 The BIA had jurisdiction to review the I mmigration

J udge ’s removal decision under 8 C.F.R. § 1003.1(b)(3)

, and

we ha ve jurisdiction over the Board’s final order of removal

under 8 U.S.C. § 1252(a)(1).

3 Although we agree the BIA reach ed the best reading of these provisions, our duty is to examine the law independently using the ordinary tools of statutory

int erpretation. Chevron, U.S.A., Inc. v. Nat

. Res

. Def

. Council,

Inc. , 467 U.S. 837, 842

– 43 & n.9 (1984) ; see also A m. Hosp.

Ass’n v. Becerra , 142 S. Ct. 1896 (2022)

.6 A

. INA § 212(h) W aivers C annot B e U sed for

C ancellation of R emoval

INA § 212(h) states that “ [ t ] he Attorney General may, in his discretion, waive the application of [grounds of removal based on certain drug offenses]” when he “has consented to the

alien ’ s applying or reapplying for a visa, for admission to the United States, or adjustment of status. ” 8 U.S.C. § 1182( h). Section 212(h) gives the Attorney General limited discretion to excuse the consequences of certain convictions for three things : “a visa,” “admission,” and “adjustment of status.” Id. And “[w]hen a statute limits a thing to be done in a particular mode, it includes a negative of any other mode.” Raleigh &

G.R. Co. v. Reid , 80 U.S. 269, 270 (1871) ; s ee also Antonin Scalia & Brian A. Garner, Reading Law: The Interpretation of Legal Texts 107

– 12 (2012) (discussing the negative

implication canon). Omitting “cancellation of removal” from

that list reflects a c ongressional cho ice , one seem ing to place

NACARA applications outside of § 212(h) waiver s

.

But Lopez argues applications for NACARA cancellation of removal are, despite their name, also applications for “adjustment of status” under § 212(h) because a successful application means , well, an adjustment of status to

l awful p ermanent r esident. See NACARA § 203( b). And it is

true that NACARA § 203(b) permits the Attorney General to

“ cancel removal of, and adjust to the status of [ l awful

p ermanent r esident],” an alien who qualifies for relief. Id. But

the meaning of § 212(h)’s phrase “adjustment of status” when

enact ed excludes the possibility that the statute encompas s es7 an application for both adjustment of status and cancellation of

removal

. 4

4 “Adjustment of status” and “cancellation of removal” are not the sort of phrases you often hear at the corner coffee shop. Polling a group of ordinary and competent English speakers on what these six words mean is likely to produce equal parts blank stare s and reasonable guesses. But that does not give courts license to invent a meaning to our liking. Instead, when interpreting technical and specialized legal language, we look not for the public meaning (as none is likely to exist), but what we might call the legal meaning. See Richard H. Fallon, Jr., The Meaning of Legal “ Meaning ” and Its Implications for Theories of Legal Interpretation , 82 U. Chi. L. Rev. 1235, 1244 (2015) (denoting by “legal meaning” “the message or proposition that statutory or constit utional

la nguage expresses”) ; William Baude & Stephen E. Sachs, The Law of Interpretation , 130 Harv. L. Rev. 1079, 108 2

– 8 3 (2017) ( “ Interpretation isn’t just a matter of language

. . . . Language will of course be an input to the process, but law begins and ends the inquir y.”). Often, legal meaning and ordinary public meaning travel together because interpretation using ordinary public meaning ensures that the people have received appropriate notice of the government’s legitimate purpose. And not ice is necessary for posited law to serve one of its central purposes, “coordinating society’s members toward the common good.” Lee J. Strang, Originalism’s Promise: A Natural Law Account of the American Constitution 268 (2019); see also Conor Casey

& Adri an Vermeule, Myths of Common Good

Constitutionalism , 45 Harv. J. L. & Pub. Pol’y 103, 122 (2022) (posited law is “intrinsically reasoned and purposive, and8 To understand the present, we must s tart in the past. The waiver of inadmissibility now in INA § 212(h) arose from § 5 of the Act of September 11, 1957, Pub. L. No. 85

- 316, 71 Stat. 639, 640. Section 5 allowed the Attorney General to grant waivers only to “aliens applying or reapplying for a visa and for admission to the United States.” 8 U.S.C. § 1182(b) (1 958).

A n a mendment in 1990 added waiver authority for aliens submitting applications for adjustment of status. Pub. L. No.

101

- 649, 104 Stat. 4978, 5076

– 77 (1990)

. Ye t t hat extension

ordered to the common good”). So when this coordinating purpose predominates, so too should the public meaning, even if a law incorporates technical terms. That is because s tatutes “are written to guide the actions of men.

. . . If a statute is written for ordinary folk, it would be arbitrary not to

. . . read [it] with the minds of ordinary men .” Fe lix Frankfurter, Some Reflections on the Reading of Statutes , 47 Colum. L. Rev. 527, 536 (1947)

. But “[i] f they are addressed to specialists, they must be read by judges with the minds of specialists.” Id. ; see also Nix v. Hedden , 149 U.S. 304, 306

– 07 (189 3) (interpreting the words “fruit” and “vegetables” in the Tariff Act of 1883 according to the “ordinary meaning” “that they had in March, 1883,” rather than their botanical definitions, because there

was “no evidence that the words

. . . acquired any spec ial meaning in trade or commerce”). H ere , Congress used the language of the specialist versed in the execution of the immigration laws. W hatever the public might read into these terms, it is only the legal meaning that explains Congress’s

directive s in the INA and NACARA. That is th e meaning w e follow. See Moskal v. United States , 498 U.S. 103, 121 (1990) (Scalia, J., dissenting) (“[W]hen a statute employs a term with a specialized legal meaning relevant to the matter at hand, that meaning governs.”)

.9 of § 212(h) could not have included cancellation of removal applicants be cause cancellation of removal did not yet exist. Congress created that new type of relief

, and a separate application for it, by adding § 240A to the INA in 1996

. Compare Pub. L. No. 104

- 208, 110 Stat. 3009

- 594 (1996) (cr eating INA § 240A , which only provides for cancellation of

removal ) with INA § 245 (governing applications for adjustment of status) . B ut Congress did not extend § 212(h) ’s availability to applicants for that new form of relief

. Given th at
choice

, § 212(h) ’s phrase “ a djustment of statu s” could not have

included “cancellation of removal” or the yet

- nonexistent concept of “adjustment of status and cancellation of removal .” 5

B y asking for a § 212(h) waiver to make him eligible for cancellation of removal, then, Lopez seeks to use the waiver for an unauthorized purpose, even though he also wants to use
it for adjustment of status

— an authorized purpose. An

unauthorized use cannot be trans mogrifie d by tacking on a n

5 The possibility that cancellation of removal could also result in adjustment of status first arose with NACARA’s passage in 1997. NACARA “amended the language of sections 240A(b)(1) and (2) of the Act[, the INA’s general cancellation

of remo val provisions,] by changing the phrase ‘may cancel removal in the case of’ to ‘may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence.’ Thus, the new language authorized the Attorney

General to cancel an alie n’s removal and adjust his or her status to that of a lawful permanent resident. Previously, the Attorney General could technically only cancel an alien’s removal under

section 240A of the Act.” Matter of A

- M

- , 25 I. & N. Dec. 66, 73 (BIA 2009); NACARA § 204.10 authorized use

. 6 Barring amendment by NACARA, t he waiver of inadmissibility Congress authorized in INA § 212(h) may not be granted to bring about cancellation of removal. And

NACARA contains no such amendment.

B. NACARA’s E nactment D id N ot E xpand INA § 212(h)

Because NACARA does not reference any waiver provision, any effect it has on INA § 212(h) waivers must be implied. NACARA’s text and structure reveal no implicit expansion of INA § 212(h) ’s phrase “adjustment of status .” Instead, it created a new mechanism that offers two distinct forms of relief, adjustment of status and cancellation of

removal. As the BIA recognized, “ separate provisions of NACARA specifically provide for adjustment of status and

cancellation of remov al as two distinct forms of relief.” App

. 6. NACARA’s provision for cancellation of removal

references the INA ’s provision for regular cancellation of

removal

, § 240A. NACARA § 2 03(b) . Separately, NACARA

6 Lopez’s argument also creates redundancy. The INA’s provision for ordinary cancellation of removal, § 240A, includes a special waiver for aliens victimized by domestic

violence seeking cancellation and adjustment . 8 U.S.C. § 1229b(b)(5). Under Lopez ’s reading

, § 212(h)’s phrase “adjustment of status” includes applications for cancellation of removal that would also result in adjustment of status

,

r endering the special waiver for battered applicants irrelevant

. O ther things being equal, we should be “reluctant to adopt a

construc tion making another statutory provision superfluous.”

Hohn v. United States , 524 U.S. 236, 249 (1998) ; see also Scalia & Garner, supra , at 1 74

– 79 (discussing the surplusage canon).11 § 202(a) provides for “ a djustment of s tatus” relief and references the INA’s provision for adjustment of status

, INA § 245. NACARA § 202(a). Both show that NACARA preserves the INA’s distinction between “cancellation of removal” and “adjustment of status” applications even while allowing cancellation of removal applications to result in adjustment of status. Far from impliedly amending INA § 212(h) , Congress took care to leave it unaltered. As a result,

the INA does not provide Lopez a path to cancelling the removal order against him

.

III.

An applica tion for cancellation of removal under NACARA is not an application for adjustment of status under § 212(h) of the INA. So we will deny Lopez’s petition for

review.