F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

C H A R L E S C H U

K W U M E Z E E L E R

I , AKA Charles C. Eleri, P etitioner
,

v

.

J E F F E R S O N B

. S E S S I O N S I I I , Attorney General, Respondent. N o. 13-73455

Ag ency No. A044-843-028

OPI NI ON

O n Petition for Review of an Order of the B oard of I

mmig ration Appeals

Arg u ed and Submitted December 8, 2016

Pasadena, California

F iled March 24, 2017

B efore: J acqueline H. Ng uy en and J o hn B . Owens, Circuit J udg es, and Edward R. Korman, * District J udg e.

Opinion by

J udg e Korman

* T h e Ho n o rab le Ed w ard R

. Ko rm an , Un i ted States District J u d g e f or th e Eastern District o f

New Yo rk , sittin g b y

d esig n atio n

.E L E R I V

. S E S S I O N S 2

SUMMARY * *

Im m igration

The panel denied Charles Chukwumez e Eleri’s petition for review o f the B oard of I mmig r ation Appeals’ decision finding him inelig ible for a waiver of inadmissib i l i t y under the ag g ravated felony

bar.

The panel held that because Eleri was admi tted to the United States as a conditiona l p e r m a nent resident, he is “an alien who has previously been admitted to the United States

as an a lien lawfully admitted for permanent residence.” The panel held that Eleri was therefore inelig ib l e for a waiver o f inadmissibility pursuant to 8 U.S.C. § 1182(h) because he h ad
an ag g ravated felony

conviction.

COUNSEL

J oseph L aCome (arg

ued), Sa n R afael, California, for Petitioner.

Colette J abes Winston (arg ued), Attorney ; J anett e L

. Allen and K i l ey Kane, Senior L itig ation Counsel; B enjamin C. Miz er, Principal Deputy Assistant Attorney General; Office of I mmig ration L itig ation, Civil Division, W ashing ton, D.C.; for Respondent.

** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.E L E R I V

. S E S S I O N S 3

OP INION

KORMAN, District J udg e:

The issue presented here is whether the Attorney General has the discretion to g rant a waiver of inadmissibil i t y t o a conditional p ermanent resident who has been convicted of an ag g r avated felony as opposed to a lesser offense involving moral turpitude. 8 U .S.C. § 1182(a)(2)(A)(i)(I ). I n the latter
case, the Attorney General may g rant a waive r o f inadmissibility if “the alien’ s d enial of admission would result in ex treme hardship” to his U.S. c itiz e n spouse. Id. at § 1182(h)(1)(B ). Such a w aiver is barred, ho w e v e r , i f the alien has been convicted of a n a ggr a v a t e d f

elony

. Id. at § 1182(h).

B e fore turning to the specific facts o f this case, we provide a brief overview of the statutory scheme as it applies
to conditional permanent residents. Specifically
, a conditional p ermanent resident is an a l i e n admitted to the United States f

or permanent r esidence on a conditional basis due to, inter alia
, his marriag e to a U.S. citiz en. See 8 U .S.C. § 1186a(a)(1), (h)(1); see also Vasquez v. Holder
, 6 02 F .3d 1003, 1006 (9th Cir. 2010). “Unless otherwise specified, the rig hts, p r i v ileg es, responsibilities and duties which apply to all other lawful permanent residents apply equally to conditional permanent r esidents, including but not limited to

. . . the privileg e o f residing p ermanently in the U nited States as an immig r ant.” 8 C.F .R. § 216.1.

An a lien must file a petiti o n t o e liminate his conditional
sta t u s w i thin the 90-day s before “the second anniversary o f the alien’s obtaining the status of lawful admission for permanent residence,” and subsequently attend an interview.E L E R I V

. S E S S I O N S 4

8 U.S.C. § 1186a(c)(1), ( d)(2)(A). The p e t i t i o n will be
g ranted, “effective as of the second anniversary of the alien’s obtaining the status of lawful admission for p ermanent

r e sidence,” upon a d etermination that the alien’s marr i a ge was entered into lawfully , not annulled or terminated ex cept throug h death of a spouse, and n ot entered into for the
p u r p o s e o f p r o c u r i n g h i s a d m i s s i o n

. I d

. a t § 1186a(c)(3)(A)–(B ), (d)(1)(A). The two-y ear con d i t ional period prescribed by these provisions “strikes at the fraudulent marriag e by

the simple passag e of time [ because] it is difficult to sustain the a ppearance of a bona fide marriag e over a long period.” H.R. R E P

. N O

. 99-906, at 9–10 (1986).

Ag ainst this backdrop, we turn to the facts of this c ase. On March 21, 1995, Charles Chukwumez e Eleri (“Eleri”), a native and cit i z e n of Nig eria, entered the United States as a conditional permanent resident based on his marr i a ge to his first wife, a U.S. c itiz en. Eleri’s status as a con d itional permanent resident was automatically terminated in 1997 d ue to his failure to file the required petition. 8 C

. F .R. § 216.4(a)(6). Removal p roceeding s were not initiated b y the D e p a r t m e n t o f H o m el a n d S e c u ri t y ( “ D H S ” ) u n t i l 2011—fourteen y ears later. The app a r e n t impetus for these proceeding s was Eleri’s 2009 conviction for forcible rape o f

a 19-y ear-old woman with the ment a l capacity of a 13-y earold g irl. I n 2012, Eleri’s second wife filed a F orm I -130 visa petition on h is behalf. Notwithstanding the pending removal proceeding s, the DHS g ranted the visa petition, which is “the f i rst step in the process towards a ‘family -based adjustm e n t of status.’” Montoya v. Holder
, 744 F .3d 614, 616 (9th Cir. 2014) (citing Matte r o

f H a shmi
, 24 I

. & N. Dec. 7 85, 789 (B I A 2009)).E L E R I V

. S E S S I O N S 5

Appearing before an I mmig ration J udg e (“I J ”)
, Eleri
soug h t adjustment of status under 8 U.S.C. § 1 2 5 5(a), in conjunction with a waiver of inadmissibility pu r suant to § 1182(h)(1)(B ). The I J f o u n d
, h owever, that Eleri’s conviction f

or rape constituted both an ag g ravated felony a nd

a crime involving moral turpitude. The I J thus held that Eleri

was not entitled to a waiver o f inadmissibility

. O n appeal to the B oard o f I mmig ration Appeals (“B I A”), Eleri arg ued that “because h e was a d mitted as a permanent resident on a conditional b asis rather than a s a lawful permanent resident,” the ag g ravated felony

bar to waiver did not apply to him. I n

an unpublished decision, the B I A ag reed with t h e I J ’s determinatio n t h a t Eleri was inelig ible f or a waiver o f inadmissibility

.

After the B I A affirmed the I J ’s order, Eleri petitioned for review. W e have jurisdiction to rev i e w de novo questions involving statutory construction. Negrete-Ramirez v. H older
, 741 F .3d 1047, 1050 (9th Cir. 2014).

D ISCUSSION

A quest ion of statutory interpretation “beg ins with the plain lang u age o f the statute.” Jimenez v. Quarterman
, 555 U .S. 113, 118 ( 2009) (citation o mitted). “W hen an

ex a mination of the plain lang uag e of the statute, its structure, and purpose clearly reveals cong ressional intent, our judicial inquiry is c omplete. B u t if the plain meaning of the statutory tex t remains unclear after consulting internal i n d i cia o f
cong ressional intent, we may then turn to ex trinsic indicators, such as leg islative history
, to help resolve th e a m big uity

. ” Hernandez v. W

illiams, Zinman & Parham PC
, 829 F .3d 1068, 1073 (9th Cir. 2016 ) ( internal quotation marks a nd citations omitted). Mor eo v e r, when a statute is ambig uousE L E R I V

. S E S S I O N S 6

a n d we have the benefit of an administrative ag ency ’s interpretati o n , w e m a y defer to it if it is “based on a permissible construction o f the s t a t ute.” Chevron, U.S.A., Inc. v. Nat. R es. Def. Council, Inc.
, 467 U.S. 837, 843 (1984).

Section 1 182(h) precludes a waiver of inadmissibility “in the case of an alien who has previously been admitted to the United States as an alien l a w f u lly admitted for p ermanent residence if

. . . since the date of such a dmission the alien has been c onvicted of an ag g ra v at e d felony

. ” I n NegreteRamirez
, we held that “Cong ress defined the cla ss of those who are barred f

rom seeking a § [ 1 182(h)] waiver a s [ permanent residents] who obtained their status prior to or at the time they phy sically e n tered i n t o t he United States.” 741 F .3d a t 1053 (citations omitted). The record reflects that Eleri obtained his status as a conditional permanent resident

o n Fe bruary 3, 1995, prior to the date of his entry into t h e United States on March 21, 1995.

Nevertheless, Eleri a r g ues that he did not obtain
permane n t resident status b ecause he was admitted as a conditional permanent resident. Thus, he did not fall within the categ ory of “an alien lawfully admitte d for p ermanent residence.” 8 U.S.C. § 1182(h). Put another way , he arg ues that p e rmanent residents are not elig ible fo r a w a iver o f inadmissibility if they commit a n a gg r avated felony
, while those w h o a r e admitted as permanent residents on a conditional basis are elig ible for such a waiver.

The implausibility o f this arg ument is not unlike t h at o f the o ne made in Hing Sum v. Holder
, 602 F .3d 1092 (9th Cir. 2010). There, an alien had “acquired permanent res i d e n ce throug h fraud or m i s representation.” Id. at 1095. The alien
arg ued that, because of the fraud and misrepresentation, “heE L E R I V

. S E S S I O N S 7

w a s never lawfully admitted [ to the U nited States] for th e purpose of the [ ag g ravated f elony ] bar.” Id

. I nvoking the principle that “when possible, we interpret s t a t u t e s so as to preclude absurd results,” A ndreiu v. Ashcroft , 253 F .3d 477, 4 8 2 ( 9 th Cir. 2001) (en banc), we held that “ [ t] here i s n o

reason why

Cong ress would g ive a pass to non-citiz ens who had fraudulently ob t a i n ed [ permanent resident] status while barring f r o m relief n on-citiz e ns who had leg itimately obtained [permanent resident] status.” Hing Sum
, 6 0 2 F .3d at 1097.

W e likewise see no reason in this c a s e why Cong ress would draw Eleri’s de s i r e d distinction between p ermanent residents a

nd conditional permanent r esidents for the purpose of determining elig ibility for a waiver of inadmissibi l ity

. I ndeed, in Paek v. Attorney General of the United States
, the Third Circuit held that the “langu ag e of the I N A [ I mmig r ation and Nationality Act] ind i c a t e s that an alien admitted a s a [ conditional permanent resident] c onstitutes ‘an alien who has previously been admitted to the United States

as an alien lawfully a dmitted for permanent r e s i d e nce.’” 793 F .3d 330, 333 (3d Cir. 2015) (quoting 8 U .S.C. § 1182(h)). I n doing so, Paek affirmed the B I A’s published decision to that ef

f e ct

. Id. ; see Matter of P aek
, 26 I

. & N

. Dec. 403, 407 (B I A 2014). Paek also p ointed to the multiple statutory references to the “second anniversary of the alien’s obtaining the status of lawful admission for p ermanent residence as being sy

nony mous w ith the second anniversary of the a lien’s ad mission as a [ conditional p ermanent resident] .” 793 F .3d at 335 (internal quotation marks a nd citations o mitted). Moreover, P aek reasoned that t h e I NA “repeatedly discusses [ conditional permanent residen t s] having their status o f lawful admission for p ermanent residence ‘terminated,’” which strong ly sug g ests thatE L E R I V

. S E S S I O N S 8

conditional p ermanen t residents already possess p ermanent resident status, because otherwise such status could not be terminated. Id. at 336 (citations omitted).

W e f ind the T h i rd Circuit’s reasoning persuasive a nd adopt its h olding that a

n a l i en admitted as a conditional permanent resident constitutes an “alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence.” 8 U.S.C. § 1 1 8 2 (h). W h ile a conditio n a l permanent resident has p ermanent resident status on a conditional basis, he noneth e l e ss enjoy s the full rig hts and privileg es of such status. I ndeed, as we observed earlier, a DHS reg u lation provides that “the rig hts, privileg es, responsibilities and duties which a pply to all other lawful permanent resid ents apply equally to conditional permanent residents, including but not limited to

. . . t he
p r i vileg e of residing permanently in the United States as a n immig rant.” 8 C.F .R. § 216.1.

Moreover, Eleri’s arg ument places u ndue weig ht on the
term “conditional.” Eleri’s status is not materiall y d ifferent from the status of what the Third C i r cu it has called a “fullfledg ed” p ermanent resident, G allimore v. Attorney General of the United States
, 619 F .3d 216
, 2 2 9 ( 3d Cir. 2010), o r

even that of a na t u r al i z ed citiz en. Each may maintain their
status on the condition that they did not obtain it as a result o f fraud. Thus, naturaliz ed citiz ens may have their c itiz e nship

r e v o k e d f

o r w i l l f u l m i s r e p r es e n t a t i o n s d u r i n g t h e naturaliz ation process, 8 U .S.C. § 1451(a), and p er manent residents may b e deported for any number of reasons, including document fraud during the application process for permanent r esidency

. S ee 8 U. S.C. § 1227(a)(3)(C)(i); 8 U.S.C. § 1324c(a). Notwithstanding Eleri’s status a s a

“ conditional” permanent r esident, the condition is si m p l yE L E R I V

. S E S S I O N S 9

that, like the “full-fledg ed” permanent resident a nd the naturaliz ed citiz en, he has not obtained his status as a result of fraud during the application process. S e e 8 U .S.C. § 1186a(b)(1); 8 U.S.C. § 1227(a)(1)(D)(i).

Thus, as the Third Circuit h as e x plained, the I N A

“ e q u a t e s c o n d itional [ permanent residents] with ‘ f u l l

- f l e d g e d ’ [ permanent r esid e n t s ]
, ex cept to the ex tent—but only to the

ex tent—that § 1186a prescribes additional obliga t i ons.” Gallimore
, 6 19 F

. 3 d at 229. The “additional obl i gations,” however, only pertain to procedures to ensure t h a t the

marr i a g e that afforded a

n alien the status of a conditional
p e r m anent resident was not f raudulent. See 8 U.S

. C

. § 1186a(a)–(c). “And so long a s a conditional [ p ermanent resident] complies with those oblig a tions, they do not affect th e a l ien’s ‘privileg e of residing p ermanently in the United States a s an immig rant in a c cordance with the immig r ation laws.’” Gallimore
, 6 19 F .3d at 229 (quoting 8 C

. F. R. § 216.1).

L astly
, e ven if the statutory lang uag e is “ ambig uous with respect to the specific issue,” t h e B I A ’s interpretation is “based o n a permissible construction of the statute [ s ]
, ” Chevron
, 467 U.S. at 843, a nd “[ w] e appl y Chevron de fe r e nce to the [ B I A’s] interpretations of ambig uous immig ration statutes, if the [ B I A’s] decision is a published decision or a

n unpublished decision directly controlled by [ a] published decision.” Toor v. Lynch
, 789 F .3d 1055, 1059 (9th C ir. 2015) (internal quotation marks and citations omitte d ). W h ile the B I A’s decision in t h i s case was unpublished, the B I A did publish a more recent decision in anoth er c ase, which held that a

n alien w h o was admitted as a conditional
p e rmanent resident was subject to the ag g ravated felony bar to waiver. See Paek

, 26 I . & N. at 407.E L E R I V

. S E S S I O N S 10

I n the p resent case, Eleri was admitted to the Unit e d States as a condition a l permanent resident in March 1995. Eleri thus constitutes “an a lien w ho has previo u s l y b een admitted to the United States as an a lien lawfully admitted for permanent residence.” 8 U.S.C. § 1182(h). A s such, Eleri is subject to the ag g ravated felony bar to waiver.

CONCLUSION

According ly , we DENY the petition for review.