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 an Order of the Board of 

Immigration Appeals

(No. A094-481-777)

Immigration Judge: Walter Durling

______________

Argued January 26, 2022

Before: CHAGARES, Chief Judge, McKEE 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

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OPINION OF THE COURT

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MATEY, Circuit Judge.

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

of the Nicaraguan Adjustment and Central American Relief 

Act (“NACARA”), but he cannot meet the standard NACARA 

applies to applicants removeable for certain drug offenses. So 

he asks for a waiver of NACARA’s requirements under

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

which applies to applications for adjustment of status. But 

§ 212(h) is inapplicable because an application for NACARA
3

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 United States. See 8 U.S.C. §§ 1101–1537. 

Among other mechanisms, the INA allows admissible aliens to 

apply for “adjustment of status” to “an alien lawfully admitted 

for permanent residence.” 8 U.S.C. § 1255. But it makes aliens

inadmissible for various reasons, including for committing an 

enumerated criminal offense, 8 U.S.C. § 1182(a)(2), and 

provides for their removal, 8 U.S.C. § 1229a. INA § 212(h), in 

turn, gives the Attorney General discretion to grant a waiver of

inadmissibility for applicants who meet the eligibility 

requirements. 8 U.S.C. § 1182(h).

NACARA came later, creating special eligibility

standards for suspension or cancellation of removal for certain 

Salvadorans, Guatemalans, and Nicaraguans. NACARA 

§§ 202, 203, Pub. L. No. 105-100, tit. II, 111 Stat. 2160 (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 “lawfully admitted for

permanent residence,” allowing them to remain in the United 

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

discretion by imposing stricter standards for applicants who

have committed an offense that the INA lists as a ground for

inadmissibility. Id.
4

This case asks whether aliens 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 cannot.

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. While removal proceedings continued, 

Lopez was charged with possession of marijuana. Following a 

guilty plea in 2015, DHS added a charge of removability under

the INA, 8 U.S.C. § 1182(a)(2)(A)(i)(II), applicable to aliens

who committed a controlled substance offense. That triggered

a limiting provision in NACARA that bumps the requirement 

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 looked to the waiver provision in INA 

§ 212(h) to excuse that added charge.

On a second look,

1

the Board of Immigration Appeals 

(“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 the “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 applications for cancellation of removal and adjustment 

of status brought under INA § 240A’s general cancellation of 
5

may not be used with an application for NACARA cancellation 

of removal. Lopez filed this petition for review and, reading 

the law as the BIA did, we will deny 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. Att’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. Att’y Gen., 757 F. App’x

163, 167 (3d Cir. 2018). The BIA followed that 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 Immigration 

Judge’s removal decision under 8 C.F.R. § 1003.1(b)(3), and 

we have jurisdiction over the Board’s final order of removal 

under 8 U.S.C. § 1252(a)(1).

3 Although we agree the BIA reached the best reading 

of these provisions, our duty is to examine the law

independently using the ordinary tools of statutory 

interpretation. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, 

Inc., 467 U.S. 837, 842–43 & n.9 (1984); see also Am. Hosp. 

Ass’n v. Becerra, 142 S. Ct. 1896 (2022).
6

A. INA § 212(h) Waivers Cannot Be Used for 

Cancellation of Removal

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); see also Antonin 

Scalia & Brian A. Garner, Reading Law: The Interpretation of 

Legal Texts 107–12 (2012) (discussing the negativeimplication canon). Omitting “cancellation of removal” from 

that list reflects a congressional choice, one seeming to place 

NACARA applications outside of § 212(h) waivers.

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 

lawful permanent resident. 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 [lawful 

permanent resident],” an alien who qualifies for relief. Id. But 

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

enacted excludes the possibility that the statute encompasses 
7

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 stares 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 constitutional 

language expresses”); William Baude & Stephen E. Sachs, The 

Law of Interpretation, 130 Harv. L. Rev. 1079, 1082–83 

(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 inquiry.”). 

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 notice 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 

& Adrian Vermeule, Myths of Common Good 

Constitutionalism, 45 Harv. J.L. & Pub. Pol’y 103, 122 (2022) 

(posited law is “intrinsically reasoned and purposive, and 
8

To understand the present, we must start 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) (1958). 

An amendment in 1990 added waiver authority for aliens 

submitting applications for adjustment of status. Pub. L. No. 

101-649, 104 Stat. 4978, 5076–77 (1990). Yet that 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 statutes 

“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.” Felix 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 (1893) (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 special 

meaning in trade or commerce”). Here, Congress used the 

language of the specialist versed in the execution of the 

immigration laws. Whatever the public might read into these 

terms, it is only the legal meaning that explains Congress’s 

directives in the INA and NACARA. That is the meaning we 

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.”).
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of § 212(h) could not have included cancellation of removal 

applicants because 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)

(creating INA § 240A, which only provides for cancellation of 

removal) with INA § 245 (governing applications for 

adjustment of status). But Congress did not extend § 212(h)’s

availability to applicants for that new form of relief. Given that 

choice, § 212(h)’s phrase “adjustment of status” could not have 

included “cancellation of removal” or the yet-nonexistent 

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

By 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 transmogrified by tacking on an

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 removal 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 alien’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, the 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 Enactment Did Not Expand 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 removal 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 § 203(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,

rendering the special waiver for battered applicants irrelevant.

Other things being equal, we should be “reluctant to adopt a 

construction making another statutory provision superfluous.” 

Hohn v. United States, 524 U.S. 236, 249 (1998); see also 

Scalia & Garner, supra, at 174–79 (discussing the surplusage

canon).
11

§ 202(a) provides for “adjustment of status” 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 application 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.