FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHARLES CHUKWUMEZE ELERI,

AKA Charles C. Eleri,

Petitioner,

v.

JEFFERSON B. SESSIONS III, Attorney

General,

Respondent.

No. 13-73455

Agency No.

A044-843-028

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted December 8, 2016

Pasadena, California

Filed March 24, 2017

Before: Jacqueline H. Nguyen and John B. Owens, Circuit

Judges, and Edward R. Korman,* District Judge.

Opinion by Judge Korman

* The Honorable Edward R. Korman, United States District Judge for

the Eastern District of New York, sitting by designation.
2 ELERI V. SESSIONS

SUMMARY**

Immigration

The panel denied Charles Chukwumeze Eleri’s petition

for review of the Board of Immigration Appeals’ decision

finding him ineligible for a waiver of inadmissibility under

the aggravated felony bar.

The panel held that because Eleri was admitted to the

United States as a conditional permanent resident, he is “an

alien who has previously been admitted to the United States

as an alien lawfully admitted for permanent residence.” The

panel held that Eleri was therefore ineligible for a waiver of

inadmissibility pursuant to 8 U.S.C. § 1182(h) because he had

an aggravated felony conviction. 

COUNSEL

Joseph LaCome (argued), San Rafael, California, for

Petitioner.

Colette Jabes Winston (argued), Attorney; Janette L. Allen

and Kiley Kane, Senior Litigation Counsel; Benjamin C.

Mizer, Principal Deputy Assistant Attorney General; Office

of Immigration Litigation, Civil Division, Washington, D.C.;

for Respondent.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
ELERI V. SESSIONS 3

OPINION

KORMAN, District Judge:

The issue presented here is whether the Attorney General

has the discretion to grant a waiver of inadmissibility to a

conditional permanent resident who has been convicted of an

aggravated felony as opposed to a lesser offense involving

moral turpitude. 8 U.S.C. § 1182(a)(2)(A)(i)(I). In the latter

case, the Attorney General may grant a waiver of

inadmissibility if “the alien’s denial of admission would

result in extreme hardship” to his U.S. citizen spouse. Id. at

§ 1182(h)(1)(B). Such a waiver is barred, however, if the

alien has been convicted of an aggravated felony. Id. at

§ 1182(h).

Before turning to the specific facts of this case, we

provide a brief overview of the statutory scheme as it applies

to conditional permanent residents. Specifically, a

conditional permanent resident is an alien admitted to the

United States for permanent residence on a conditional basis

due to, inter alia, his marriage to a U.S. citizen. See 8 U.S.C.

§ 1186a(a)(1), (h)(1); see also Vasquez v. Holder, 602 F.3d

1003, 1006 (9th Cir. 2010). “Unless otherwise specified, the

rights, privileges, responsibilities and duties which apply to

all other lawful permanent residents apply equally to

conditional permanent residents, including but not limited to

. . . the privilege of residing permanently in the United States

as an immigrant.” 8 C.F.R. § 216.1.

An alien must file a petition to eliminate his conditional

status within the 90-days before “the second anniversary of

the alien’s obtaining the status of lawful admission for

permanent residence,” and subsequently attend an interview. 
4 ELERI V. SESSIONS

8 U.S.C. § 1186a(c)(1), (d)(2)(A). The petition will be

granted, “effective as of the second anniversary of the alien’s

obtaining the status of lawful admission for permanent

residence,” upon a determination that the alien’s marriage

was entered into lawfully, not annulled or terminated except

through death of a spouse, and not entered into for the

purpose of procuring his admission. Id. at

§ 1186a(c)(3)(A)–(B), (d)(1)(A). The two-year conditional

period prescribed by these provisions “strikes at the

fraudulent marriage by the simple passage of time [because]

it is difficult to sustain the appearance of a bona fide marriage

over a long period.” H.R. REP. NO. 99-906, at 9–10 (1986).

Against this backdrop, we turn to the facts of this case. 

On March 21, 1995, Charles Chukwumeze Eleri (“Eleri”), a

native and citizen of Nigeria, entered the United States as a

conditional permanent resident based on his marriage to his

first wife, a U.S. citizen. Eleri’s status as a conditional

permanent resident was automaticallyterminated in 1997 due

to his failure to file the required petition. 8 C.F.R.

§ 216.4(a)(6). Removal proceedings were not initiated by the

Department of Homeland Security (“DHS”) until

2011—fourteen years later. The apparent impetus for these

proceedings was Eleri’s 2009 conviction for forcible rape of

a 19-year-old woman with the mental capacity of a 13-yearold girl. In 2012, Eleri’s second wife filed a Form I-130 visa

petition on his behalf. Notwithstanding the pending removal

proceedings, the DHS granted the visa petition, which is “the

first step in the process towards a ‘family-based adjustment

of status.’” Montoya v. Holder, 744 F.3d 614, 616 (9th Cir.

2014) (citing Matter of Hashmi, 24 I. & N. Dec. 785, 789

(BIA 2009)).
ELERI V. SESSIONS 5

Appearing before an Immigration Judge (“IJ”), Eleri

sought adjustment of status under 8 U.S.C. § 1255(a), in

conjunction with a waiver of inadmissibility pursuant to

§ 1182(h)(1)(B). The IJ found, however, that Eleri’s

conviction for rape constituted both an aggravated felony and

a crime involving moral turpitude. The IJ thus held that Eleri

was not entitled to a waiver of inadmissibility. On appeal to

the Board of Immigration Appeals (“BIA”), Eleri argued that

“because he was admitted as a permanent resident on a

conditional basis rather than as a lawful permanent resident,”

the aggravated felony bar to waiver did not apply to him. In

an unpublished decision, the BIA agreed with the IJ’s

determination that Eleri was ineligible for a waiver of

inadmissibility.

After the BIA affirmed the IJ’s order, Eleri petitioned for

review. We have jurisdiction to review de novo questions

involving statutory construction. Negrete-Ramirez v. Holder,

741 F.3d 1047, 1050 (9th Cir. 2014).

DISCUSSION

A question of statutory interpretation “begins with the

plain language of the statute.” Jimenez v. Quarterman,

555 U.S. 113, 118 (2009) (citation omitted). “When an

examination of the plain language of the statute, its structure,

and purpose clearly reveals congressional intent, our judicial

inquiry is complete. But if the plain meaning of the statutory

text remains unclear after consulting internal indicia of

congressional intent, we may then turn to extrinsic indicators,

such as legislative history, to help resolve the ambiguity.”

Hernandez v. Williams, Zinman & Parham PC, 829 F.3d

1068, 1073 (9th Cir. 2016) (internal quotation marks and

citations omitted). Moreover, when a statute is ambiguous
6 ELERI V. SESSIONS

and we have the benefit of an administrative agency’s

interpretation, we may defer to it if it is “based on a

permissible construction of the statute.” Chevron, U.S.A.,

Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984).

Section 1182(h) precludes a waiver of inadmissibility “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.” In NegreteRamirez, we held that “Congress defined the class of those

who are barred from seeking a § [1182(h)] waiver as

[permanent residents] who obtained their status prior to or at

the time they physically entered into the United States.” 

741 F.3d at 1053 (citations omitted). The record reflects that

Eleri obtained his status as a conditional permanent resident

on February 3, 1995, prior to the date of his entry into the

United States on March 21, 1995.

Nevertheless, Eleri argues that he did not obtain

permanent resident status because he was admitted as a

conditional permanent resident. Thus, he did not fall within

the category of “an alien lawfully admitted for permanent

residence.” 8 U.S.C. § 1182(h). Put another way, he argues

that permanent residents are not eligible for a waiver of

inadmissibility if they commit an aggravated felony, while

those who are admitted as permanent residents on a

conditional basis are eligible for such a waiver.

The implausibility of this argument is not unlike that of

the one made in Hing Sum v. Holder, 602 F.3d 1092 (9th Cir.

2010). There, an alien had “acquired permanent residence

through fraud or misrepresentation.” Id. at 1095. The alien

argued that, because of the fraud and misrepresentation, “he
ELERI V. SESSIONS 7

was never lawfully admitted [to the United States] for the

purpose of the [aggravated felony] bar.” Id. Invoking the

principle that “when possible, we interpret statutes so as to

preclude absurd results,” Andreiu v. Ashcroft, 253 F.3d 477,

482 (9th Cir. 2001) (en banc), we held that “[t]here is no

reason why Congress would give a pass to non-citizens who

had fraudulently obtained [permanent resident] status while

barring from relief non-citizens who had legitimately

obtained [permanent resident] status.” Hing Sum, 602 F.3d

at 1097.

We likewise see no reason in this case why Congress

would draw Eleri’s desired distinction between permanent

residents and conditional permanent residents for the purpose

of determining eligibility for a waiver of inadmissibility. 

Indeed, in Paek v. Attorney General of the United States, the

Third Circuit held that the “language of the INA

[Immigration and Nationality Act] indicates that an alien

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.’” 

793 F.3d 330, 333 (3d Cir. 2015) (quoting 8 U.S.C.

§ 1182(h)). In doing so, Paek affirmed the BIA’s published

decision to that effect. Id.; see Matter of Paek, 26 I. & N.

Dec. 403, 407 (BIA 2014). Paek also pointed to the multiple

statutory references to the “second anniversary of the alien’s

obtaining the status of lawful admission for permanent

residence as being synonymous with the second anniversary

of the alien’s admission as a [conditional permanent

resident].” 793 F.3d at 335 (internal quotation marks and

citations omitted). Moreover, Paek reasoned that the INA

“repeatedly discusses [conditional permanent residents]

having their status of lawful admission for permanent

residence ‘terminated,’” which strongly suggests that
8 ELERI V. SESSIONS

conditional permanent residents already possess permanent

resident status, because otherwise such status could not be

terminated. Id. at 336 (citations omitted).

We find the Third Circuit’s reasoning persuasive and

adopt its holding that an alien 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. § 1182(h). 

While a conditional permanent resident has permanent

resident status on a conditional basis, he nonetheless enjoys

the full rights and privileges of such status. Indeed, as we

observed earlier, a DHS regulation provides that “the rights,

privileges, responsibilities and duties which apply to all other

lawful permanent residents apply equally to conditional

permanent residents, including but not limited to . . . the

privilege of residing permanently in the United States as an

immigrant.” 8 C.F.R. § 216.1.

Moreover, Eleri’s argument places undue weight on the

term “conditional.” Eleri’s status is not materially different

from the status of what the Third Circuit has called a “fullfledged” permanent resident, Gallimore v. Attorney General

of the United States, 619 F.3d 216, 229 (3d Cir. 2010), or

even that of a naturalized citizen. Each may maintain their

status on the condition that they did not obtain it as a result of

fraud. Thus, naturalized citizens may have their citizenship

revoked for willful misrepresentations during the

naturalization process, 8 U.S.C. § 1451(a), and permanent

residents may be deported for any number of reasons,

including document fraud during the application process for

permanent residency. See 8 U.S.C. § 1227(a)(3)(C)(i);

8 U.S.C. § 1324c(a). Notwithstanding Eleri’s status as a

“conditional” permanent resident, the condition is simply
ELERI V. SESSIONS 9

that, like the “full-fledged” permanent resident and the

naturalized citizen, he has not obtained his status as a result

of fraud during the application process. See 8 U.S.C.

§ 1186a(b)(1); 8 U.S.C. § 1227(a)(1)(D)(i).

Thus, as the Third Circuit has explained, the INA

“equates conditional [permanent residents] with ‘full-fledged’

[permanent residents], except to the extent—but only to the

extent—that § 1186a prescribes additional obligations.” 

Gallimore, 619 F.3d at 229. The “additional obligations,”

however, only pertain to procedures to ensure that the

marriage that afforded an alien the status of a conditional

permanent resident was not fraudulent. See 8 U.S.C.

§ 1186a(a)–(c). “And so long as a conditional [permanent

resident] complies with those obligations, they do not affect

the alien’s ‘privilege of residing permanently in the United

States as an immigrant in accordance with the immigration

laws.’” Gallimore, 619 F.3d at 229 (quoting 8 C.F.R.

§ 216.1).

Lastly, even if the statutory language is “ambiguous with

respect to the specific issue,” the BIA’s interpretation is

“based on a permissible construction of the statute[s],” 

Chevron, 467 U.S. at 843, and “[w]e apply Chevron

deference to the [BIA’s] interpretations of ambiguous

immigration statutes, if the [BIA’s] decision is a published

decision or an unpublished decision directly controlled by [a]

published decision.” Toor v. Lynch, 789 F.3d 1055, 1059 (9th

Cir. 2015) (internal quotation marks and citations omitted). 

While the BIA’s decision in this case was unpublished, the

BIA did publish a more recent decision in another case,

which held that an alien who was admitted as a conditional

permanent resident was subject to the aggravated felony bar

to waiver. See Paek, 26 I. & N. at 407.
10 ELERI V. SESSIONS

In the present case, Eleri was admitted to the United

States as a conditional permanent resident in March 1995. 

Eleri thus constitutes “an alien who has previously been

admitted to the United States as an alien lawfully admitted for

permanent residence.” 8 U.S.C. § 1182(h). As such, Eleri is

subject to the aggravated felony bar to waiver.

CONCLUSION

Accordingly, we DENY the petition for review.